Text of NM SB 183 (2010)

underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR SENATE BILL 183 49TH LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 2010 INTRODUCED BY Peter Wirth and Mimi Stewart AN ACT RELATING TO DOMESTIC AFFAIRS; CREATING A NEW CHAPTER 40A NMSA 1978 ESTABLISHING DOMESTIC PARTNERSHIPS; AMENDING SECTIONS OF THE NMSA 1978 TO PROVIDE FOR RIGHTS AND RESPONSIBILITIES OF DOMESTIC PARTNERS; PROVIDING A PENALTY; RECONCILING MULTIPLE AMENDMENTS TO SECTIONS OF LAW IN LAWS 2007, 2008 AND 2009. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: Section 1. A new Section 40A-1-1 NMSA 1978 is enacted to read: "40A-1-1. [NEW MATERIAL] DOMESTIC PARTNERSHIP--CIVIL CONTRACT.--Domestic partnership is a civil contract that is not marriage entered into by two adults, regardless of physical, behavioral or developmental disability or sex, who are capable in law of contracting. The consent of the contracting persons is essential to the creation of a domestic partnership." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 2 - Section 2. A new Section 40A-1-2 NMSA 1978 is enacted to read: "40A-1-2. [NEW MATERIAL] RELIGIOUS FREEDOM.--Nothing in Chapter 40A NMSA 1978 shall interfere with or regulate the religious practice of any religious body or Indian nation, tribe or pueblo. No religious body or federally recognized Indian nation, tribe or pueblo shall be required to solemnize or witness a domestic partnership." Section 3. A new Section 40A-1-3 NMSA 1978 is enacted to read: "40A-1-3. [NEW MATERIAL] COUNTY CLERK--DUTIES.-- A. A county clerk shall provide an affidavit of domestic partnership form to individuals prepared to establish a domestic partnership. B. A county clerk shall accept an affidavit of domestic partnership when it is submitted and shall immediately issue a certificate of domestic partnership and record and index the certificate in the record of domestic partnerships in the county records. After recording, the county clerk shall provide a certificate of domestic partnership to the domestic partners. C. A county clerk shall receive a fee of twenty- five dollars ($25.00) for issuing and recording a certificate of domestic partnership. D. Each county shall maintain a record of domestic underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 3 - partnerships for the purpose of recording and indexing affidavits and certificates of domestic partnerships as county records." Section 4. A new Section 40A-1-4 NMSA 1978 is enacted to read: "40A-1-4. [NEW MATERIAL] ESTABLISHING A DOMESTIC PARTNERSHIP.-- A. A domestic partnership is established when, upon receipt of an affidavit of domestic partnership, a county clerk issues and records a certificate of domestic partnership. B. To obtain a certificate of domestic partnership, individuals shall: (1) appear in person and submit an affidavit of domestic partnership to a county clerk on a form that conforms with the requirements of Section 40A-1-7 NMSA 1978 stating that the two individuals intend to become domestic partners and that they: (a) have reached the age of majority; (b) are capable of consenting to the domestic partnership; (c) are not married to someone else and are not part of a domestic partnership with someone else or a civil union with someone else; and (d) are not related by blood to the degree of consanguinity considered incestuous by the laws of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 4 - New Mexico; (2) provide a mailing address; (3) consent to the jurisdiction of the district courts of New Mexico for the purpose of a proceeding related to the domestic partnership; (4) declare that representations made in the affidavit are true, correct and contain no material omission of fact to the best knowledge and belief of each individual; (5) deliver the affidavit to a county clerk for recording and for issuance of a certificate of domestic partnership; and (6) pay a registration fee of twenty-five dollars ($25.00)." Section 5. A new Section 40A-1-5 NMSA 1978 is enacted to read: "40A-1-5. [NEW MATERIAL] JURISDICTION--DISTRICT COURT.-- A. The district court shall have jurisdiction over any proceeding relating to domestic partnership. B. In accordance with the consent acknowledged by the domestic partners in the affidavit of domestic partnership, if no other forum is available with comparable remedies to address distribution of assets, debts and support, as well as any other issues related to a domestic partnership established in this state, the district court shall have jurisdiction even if neither party is a resident of, or maintains a domicile in, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 5 - the state at the time the proceedings are filed. C. A petition addressing domestic partnership issues may be filed in the district court of the county in which the petitioner or respondent resides or last resided or in the county in which the domestic partnership is recorded. D. Nothing in this section shall be construed as granting jurisdiction in conflict with the Uniform Child- Custody Jurisdiction and Enforcement Act or the Uniform Interstate Family Support Act as adopted in New Mexico." Section 6. A new Section 40A-1-6 NMSA 1978 is enacted to read: "40A-1-6. [NEW MATERIAL] PROHIBITED DOMESTIC PARTNERSHIPS--ANNULMENT.--Domestic partnerships within a degree of consanguinity considered incestuous by the laws of New Mexico or between or with persons who have not reached the age of majority shall be declared void by a decree of the district court. A cause of action may be instituted by the minor, by next friend, by either parent or legal guardian of such minor or by the district attorney. In the case of minors, no party to the domestic partnership over the prohibited age shall be allowed to apply for or obtain a decree of the court declaring such domestic partnership void; but the minor may do so, and the court may in its discretion grant domestic partner support until the minor reaches the age of majority, marries or enters into another domestic partnership. In the case of minors, if underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 6 - the parties should live together until they arrive at the age of majority, then and in that case, the domestic partnership shall be deemed legal and binding." Section 7. A new Section 40A-1-7 NMSA 1978 is enacted to read: "40A-1-7. [NEW MATERIAL] AFFIDAVIT AND CERTIFICATE OF DOMESTIC PARTNERSHIP--FORMS.-- A. To ensure a uniform system of records for all domestic partnerships, an affidavit of domestic partnership and a certificate of domestic partnership shall be substantially as provided in this section, with each form to be numbered consecutively corresponding with the page number of the record of domestic partnerships in the county clerk's office. All such forms shall be provided free of cost by the county. B. The affidavit of domestic partnership form shall be substantially as follows: "AFFIDAVIT OF DOMESTIC PARTNERSHIP NO.____ STATEMENTS RECEIVED AND FILED IN THE COUNTY CLERK'S OFFICE AT ___ O'CLOCK ___. M. ON ____________, 20___. COUNTY CLERK, _____________ COUNTY By __________________________, Deputy To the county clerk: We the undersigned hereby intend to be united in a domestic partnership and certify the following. Each of us has reached the age of majority. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 7 - Each of us is capable of consenting to this domestic partnership. Neither of us is married to someone else or is part of a domestic partnership with someone else or a civil union with someone else that has not been terminated, dissolved or adjudged a nullity. We are not related by blood to the degree of consanguinity considered incestuous by the laws of New Mexico. Each of us consents to the jurisdiction of the district courts of New Mexico for the purpose of a proceeding related to this domestic partnership or to a domestic partner's rights and obligations, even if one or both of us do not reside in the state. The representations here are true and correct and contain no material omission of fact to the best of our knowledge and belief. Individual 1 Individual 2 Full name: Full name: ________________________ _________________________ Date of birth: Date of birth: ________________________ _________________________ Place of birth: Place of birth: ________________________ _________________________ Present address: Present address: ________________________ _________________________ underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 8 - ________________________ _________________________ Signature: Signature: ________________________ _________________________ State of New Mexico County of __________________ Subscribed and sworn to before me this ______ day of _____, 20___. (Seal) _____________________ County Clerk On _______, 20___, before me _________________, Notary Public, acknowledge that ____________________ and ___________________ personally appeared and have proved to me with satisfactory evidence to be the persons whose names are subscribed to the affidavit of domestic partnership. WITNESS my hand and official seal. __________________________________ Signature of Notary Public (PLACE NOTARY PUBLIC SEAL HERE) FILE NO. __________________". C. The certificate of domestic partnership form shall be substantially as follows: "CERTIFICATE OF DOMESTIC PARTNERSHIP State of New Mexico, ss. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 9 - County of _________________. _______________________ of ____________________ and Partner 1 Address _______________________ of ____________________ Partner 2 Address are hereby recognized as domestic partners in accordance with the laws of the state of New Mexico. Recorded this ______________ day of ___________, 20____, at ______o'clock _____.M. Record of Domestic Partnership Book No. ____, Page No.___. _____________________________ County Clerk"." Section 8. A new Section 40A-1-8 NMSA 1978 is enacted to read: "40A-1-8. [NEW MATERIAL] MISREPRESENTATION OF DOMESTIC PARTNERSHIP ELIGIBILITY--PENALTY.--Filing an intentionally and materially false affidavit of domestic partnership is punishable as a misdemeanor in accordance with the provisions of Section 31-19-1 NMSA 1978." Section 9. A new Section 40A-1-9 NMSA 1978 is enacted to read: "40A-1-9. [NEW MATERIAL] RECIPROCITY.--A domestic partnership, civil union or a substantially similar legal relationship established in another jurisdiction shall be afforded the same rights as a domestic partnership established underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 10 - in New Mexico." Section 10. A new Section 40A-2-1 NMSA 1978 is enacted to read: "40A-2-1. [NEW MATERIAL] MUTUAL OBLIGATIONS OF DOMESTIC PARTNERS.--Domestic partners contract toward each other obligations of mutual respect, fidelity and support." Section 11. A new Section 40A-2-2 NMSA 1978 is enacted to read: "40A-2-2. [NEW MATERIAL] CONTRACT RIGHTS OF DOMESTIC PARTNERS.--Either domestic partner may enter into any engagement or transaction with the other, or with any other person respecting property, which either might, if unpartnered, subject, in transactions between themselves, to the general rules of common law that control the actions of persons occupying confidential relations with each other." Section 12. A new Section 40A-2-3 NMSA 1978 is enacted to read: "40A-2-3. [NEW MATERIAL] POWERS OF ATTORNEY--JOINDER OF PARTNER UNNECESSARY.--It shall not be necessary in any case for one domestic partner to join with the other partner when that partner executes a power of attorney for himself or herself." Section 13. A new Section 40A-2-4 NMSA 1978 is enacted to read: "40A-2-4. [NEW MATERIAL] EXECUTION OF DOMESTIC PARTNERSHIP SETTLEMENT OR SEPARATION CONTRACTS.--All contracts underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 11 - for domestic partnership settlements and contracts for separation must be in writing and executed and acknowledged or proved in like manner as a grant of land is required to be executed and acknowledged or proved." Section 14. A new Section 40A-2-5 NMSA 1978 is enacted to read: "40A-2-5. [NEW MATERIAL] RECORDING OF DOMESTIC PARTNERSHIP SETTLEMENT OR SEPARATION CONTRACTS--EFFECT OF RECORDING OR FAILURE TO RECORD.--When a domestic partnership settlement or separation contract is acknowledged or proved, it must be recorded in the office of the recorder of every county in which any real estate may be situated that is granted or affected by such contract. The recording or nonrecording of such contract has a like effect as the recording or nonrecording of a grant of real property." Section 15. A new Section 40A-2-6 NMSA 1978 is enacted to read: "40A-2-6. [NEW MATERIAL] PERSONS WHO MAY MAKE DOMESTIC PARTNERSHIP SETTLEMENTS.--Any person capable of entering into a domestic partnership may make a valid domestic partnership settlement." Section 16. A new Section 40A-2-7 NMSA 1978 is enacted to read: "40A-2-7. [NEW MATERIAL] MUTUAL ALTERATION OF LEGAL RELATIONS--CONSIDERATION.--Domestic partners cannot by any underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 12 - contract with each other alter their legal relations, except of their property, and except that they may agree in writing, to an immediate separation, and may make provisions for the support of either of them and of their children during their separation. The mutual consent of the parties is sufficient consideration for such an agreement." Section 17. A new Section 40A-3-1 NMSA 1978 is enacted to read: "40A-3-1. [NEW MATERIAL] LAW APPLICABLE TO PROPERTY RIGHTS.--The property rights of domestic partners are governed by this chapter unless there is a domestic partnership settlement containing stipulations contrary thereto." Section 18. A new Section 40A-3-2 NMSA 1978 is enacted to read: "40A-3-2. [NEW MATERIAL] METHODS FOR HOLDING PROPERTY.-- Domestic partners may hold property as joint tenants, tenants in common or as community property." Section 19. A new Section 40A-3-3 NMSA 1978 is enacted to read: "40A-3-3. [NEW MATERIAL] SEPARATION OF PROPERTY-- ADMISSION TO DWELLING.--Neither domestic partner has any interest in the property of the other domestic partner, but neither can be excluded from the other's dwelling." Section 20. A new Section 40A-3-4 NMSA 1978 is enacted to read: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 13 - "40A-3-4. [NEW MATERIAL] CONTRACTS OF INDEMNITY--NO OBLIGATION OF COMMUNITY PROPERTY UNLESS SIGNED BY BOTH DOMESTIC PARTNERS.--It is against the public policy of this state to allow one domestic partner to obligate community property by entering into a contract of indemnity whereby the domestic partner will indemnify a surety company in case of default of the principal upon a bond or undertaking issued in consideration of the contract of indemnity. No community property shall be liable for any indebtedness incurred as a result of any contract of indemnity made after the effective date of this section, unless both domestic partners sign the contract of indemnity." Section 21. A new Section 40A-3-5 NMSA 1978 is enacted to read: "40A-3-5. [NEW MATERIAL] DISPOSITION OF REAL PROPERTY WITHOUT JOINDER WHERE DOMESTIC PARTNER IS PRISONER OF WAR OR A PERSON MISSING IN ACTION.-- A. If a domestic partner is reported by the United States department of defense to be a prisoner of war or a person missing in action, the other domestic partner may, not less than six months after such a report, file a petition of the facts that make it desirable for the petitioning partner to engage in a transaction for which joinder of both domestic partners is required by Section 40A-3-14 NMSA 1978. B. The petition shall be filed in a district court underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 14 - of any county in which real property described in the petition is located. C. The district court shall appoint a guardian ad litem for the prisoner of war or person missing in action and shall allow such guardian a reasonable fee for the guardian's services. D. A notice, stating that the petition has been filed and specifying the date of the hearing, accompanied by a copy of the petition, shall be issued and served on the guardian ad litem and shall be published once each week for four successive weeks in a newspaper of general circulation in the county in which the proceeding is pending. The last such publication shall be made at least twenty days before the hearing. E. After the hearing, the district court may allow the petitioning domestic partner alone to engage in a transaction for which joinder of both partners is required by Section 40A-3-14 NMSA 1978 upon such terms and conditions as may be appropriate or necessary to protect the interests of the absent domestic partner. F. Any sale, lease, conveyance or encumbrance authorized by the district court pursuant to Subsection E of this section shall be confirmed by order of the district court, and that order of confirmation may be recorded in the office of the county clerk of the county where any property affected underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 15 - thereby is situated." Section 22. A new Section 40A-3-6 NMSA 1978 is enacted to read: "40A-3-6. [NEW MATERIAL] SHORT TITLE.--Sections 40A-3-6 through 40A-3-17 NMSA 1978 may be cited as the "Domestic Partnership Community Property Act"." Section 23. A new Section 40A-3-7 NMSA 1978 is enacted to read: "40A-3-7. [NEW MATERIAL] CLASSES OF PROPERTY.-- A. "Separate property" means: (1) property acquired by either domestic partner before establishment of a domestic partnership or after entry of a decree of dissolution of domestic partnership; (2) property acquired after entry of a decree entered pursuant to Section 40A-5-3 NMSA 1978, unless the decree provides otherwise; (3) property designated as separate property by a judgment or decree of any court having jurisdiction; (4) property acquired by either domestic partner by gift, bequest, devise or descent; and (5) property designated as separate property by a written agreement between the domestic partners, including a deed or other written agreement concerning property held by the domestic partners as joint tenants or tenants in common in which the property is designated as separate property. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 16 - B. Except as provided in Subsection C of this section, "community property" means property acquired by either or both domestic partners during their domestic partnership that is not separate property. Property acquired by the domestic partners by an instrument in writing whether as tenants in common or as joint tenants or otherwise shall be presumed to be held as community property unless such property is separate property within the meaning of Subsection A of this section. C. "Quasi-community property" means all real or personal property, except separate property as defined in Subsection A of this section, wherever situated, heretofore or hereafter acquired in any of the following ways: (1) by either domestic partner while domiciled elsewhere that would have been community property if the domestic partner who acquired the property had been domiciled in this state at the time of its acquisition; or (2) in exchange for real or personal property, wherever situated, that would have been community property if the domestic partner who acquired the property so exchanged had been domiciled in this state at the time of its acquisition. D. For purposes of division of property incident to a dissolution of domestic partnership or a legal separation under Section 40A-5-3 NMSA 1978, quasi-community property shall be treated as community property, if both parties are underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 17 - domiciliaries of New Mexico at the time of the dissolution or legal separation proceeding. E. "Property" includes the rents, issues and profits thereof. F. The right to hold property as joint tenants or as tenants in common and the legal incidents of so holding, including but not limited to the incident of the right of survivorship of joint tenancy, are not altered by the Domestic Partnership Community Property Act, except as provided in Sections 40A-3-10, 40A-3-12 and 40A-3-14 NMSA 1978. G. The provisions of this section shall not affect the rights of any creditor, which rights accrued prior to the effective date of this section." Section 24. A new Section 40A-3-8 NMSA 1978 is enacted to read: "40A-3-8. [NEW MATERIAL] DEFINITION OF SEPARATE AND COMMUNITY DEBTS.-- A. "Separate debt" means: (1) a debt contracted or incurred by a domestic partner before the establishment of the domestic partnership or after entry of a decree of dissolution of domestic partnership; (2) a debt contracted or incurred by a domestic partner after entry of a decree entered pursuant to Section 40A-5-3 NMSA 1978, unless the decree provides underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 18 - otherwise; (3) a debt designated as a separate debt of a domestic partner by a judgment or decree of any court having jurisdiction; (4) a debt contracted by a domestic partner during the domestic partnership that is identified by the domestic partner to the creditor in writing at the time of its creation as the separate debt of the contracting domestic partner; (5) a debt that arises from a tort committed by a domestic partner before the establishment of the domestic partnership or after entry of a decree of dissolution of domestic partnership or a separate tort committed during the domestic partnership; or (6) a debt declared to be unreasonable pursuant to Section 40A-3-11 NMSA 1978. B. "Community debt" means a debt contracted or incurred by either or both domestic partners during the domestic partnership that is not a separate debt." Section 25. A new Section 40A-3-9 NMSA 1978 is enacted to read: "40A-3-9. [NEW MATERIAL] GAMBLING DEBTS ARE SEPARATE DEBTS OF DOMESTIC PARTNER INCURRING DEBT.--A gambling debt incurred by a domestic partner as a result of legal gambling is a separate debt of the partner incurring the debt." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 19 - Section 26. A new Section 40A-3-10 NMSA 1978 is enacted to read: "40A-3-10. [NEW MATERIAL] PRIORITIES FOR SATISFACTION OF SEPARATE DEBTS.-- A. The separate debt of a domestic partner shall be satisfied first from the debtor domestic partner's separate property, excluding that partner's interest in property in which each of the domestic partners owns an undivided equal interest as a joint tenant or tenant in common. Should such property be insufficient, then the debt shall be satisfied from the debtor domestic partner's one-half interest in the community property or in property in which each domestic partner owns an undivided equal interest as a joint tenant or tenant in common, excluding the residence of the domestic partners. Should such property be insufficient, then the debt shall be satisfied from the debtor domestic partner's interest in the residence of the domestic partners, except as provided in Subsection B of this section or Section 42-10-9 NMSA 1978. Neither domestic partner's interest in community property or separate property shall be liable for the separate debt of the other domestic partner. B. Unless both domestic partners join in writing in the creation of the underlying debt or obligation incurred after the establishment of the domestic partnership, a judgment or other process arising out of such post-partnership debt underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 20 - against one domestic partner alone or both domestic partners shall not create a lien or otherwise be subject to execution against the interest of the nonjoining domestic partner in the domestic partnership residence, whether held by the domestic partners as community property, joint tenants or tenants in common. C. The priorities or exemptions established in this section for the satisfaction of a separate debt must be claimed by either domestic partner under the procedure set forth in Section 42-10-13 NMSA 1978 or the right to claim such priorities or exemptions is waived as between a domestic partner and the creditor. D. This section shall apply only while both domestic partners are living and shall not apply to the satisfaction of debts after the death of one or both domestic partners." Section 27. A new Section 40A-3-11 NMSA 1978 is enacted to read: "40A-3-11. [NEW MATERIAL] UNREASONABLE DEBT.--The court, at the time of the final decree of dissolution of domestic partnership, may declare, as between the parties, a debt to be unreasonable if it was incurred by a domestic partner while the domestic partner was living apart and the debt did not contribute to the benefit of both domestic partners or their dependents." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 21 - Section 28. A new Section 40A-3-12 NMSA 1978 is enacted to read: "40A-3-12. [NEW MATERIAL] PRIORITIES FOR SATISFACTION OF COMMUNITY DEBTS.-- A. Community debts shall be satisfied first from all community property and all property in which each domestic partner owns an undivided equal interest as a joint tenant or tenant in common, excluding the residence of the domestic partners. Should such property be insufficient, community debts shall then be satisfied from the residence of the domestic partners, except as provided in Subsection B of this section or Section 42-10-9 NMSA 1978. Should such property be insufficient, only the separate property of the domestic partner who contracted or incurred the debt shall be liable for its satisfaction. If both domestic partners contracted or incurred the debt, the separate property of both domestic partners is jointly and severally liable for its satisfaction. B. Unless both domestic partners join in writing in the creation of the underlying debt or obligation incurred after the establishment of the domestic partnership, a judgment or other process arising out of such post-partnership debt against one domestic partner alone or both domestic partners shall not create a lien or otherwise be subject to execution against the interest of the nonjoining domestic partner in the partnership residence, whether held by the partners as underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 22 - community property, joint tenants or tenants in common. C. The priorities or exemptions established in this section for the satisfaction of community debts must be claimed by either domestic partner under the procedure set forth in Section 42-10-13 NMSA 1978 or the right to claim such priorities or exemptions is waived as between a domestic partner and the creditor. D. This section shall apply only while both domestic partners are living and shall not apply to the satisfaction of debts after the death of one or both domestic partners." Section 29. A new Section 40A-3-13 NMSA 1978 is enacted to read: "40A-3-13. [NEW MATERIAL] PRESUMPTION OF COMMUNITY PROPERTY.--Property acquired during the domestic partnership by either domestic partner, or both, is presumed to be community property." Section 30. A new Section 40A-3-14 NMSA 1978 is enacted to read: "40A-3-14. [NEW MATERIAL] TRANSFERS, CONVEYANCES, MORTGAGES AND LEASES OF REAL PROPERTY--WHEN JOINDER REQUIRED.-- A. Except for purchase-money mortgages and except as otherwise provided in this section, the domestic partners must join in all transfers, conveyances or mortgages or contracts to transfer, convey or mortgage any interest in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 23 - community real property and separate real property owned by the domestic partners as cotenants in joint tenancy or tenancy in common. The domestic partners must join in all leases of community real property or separate real property owned by the domestic partners as cotenants in joint tenancy or tenancy in common if the initial term of the lease, together with any option or extension contained in the lease or provided for contemporaneously, exceeds five years or if the lease is for an indefinite term. B. Any transfer, conveyance, mortgage or lease or contract to transfer, convey, mortgage or lease any interest in the community real property or in separate real property owned by the domestic partners as cotenants in joint tenancy or tenancy in common attempted to be made by either domestic partner alone in violation of the provisions of this section shall be void and of no effect, except that either domestic partner may transfer, convey, mortgage or lease directly to the other without the other joining therein. C. Except as provided in this section, either domestic partner may transfer, convey, mortgage or lease separate real property without the other's joinder. D. Nothing in this section shall affect the right of one of the domestic partners to transfer, convey, mortgage or lease or contract to transfer, convey, mortgage or lease any community real property or separate real property owned by the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 24 - domestic partners as cotenants in joint tenancy or tenancy in common without the joinder of the other domestic partner, pursuant to a validly executed and recorded power of attorney as provided in Section 47-1-7 NMSA 1978. Nothing in this section shall affect the right of a domestic partner not joined in a transfer, conveyance, mortgage, lease or contract to validate an instrument at any time by a ratification in writing." Section 31. A new Section 40A-3-15 NMSA 1978 is enacted to read: "40A-3-15. [NEW MATERIAL] MANAGEMENT AND CONTROL OF OTHER COMMUNITY PERSONAL PROPERTY.-- A. Except as provided in Subsections B and C of this section, either domestic partner alone has full power to manage, control, dispose of and encumber the entire community personal property. B. Where only one domestic partner is named in a document evidencing ownership of community personal property or named or designated in a written agreement between that domestic partner and a third party as having sole authority to manage, control, dispose of or encumber the community personal property that is described in or that is the subject of the agreement, only the domestic partner so named may manage, control, dispose of or encumber the community personal property described in such a document evidencing ownership or in such a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 25 - written agreement. C. Where both domestic partners are named in a document evidencing ownership of community personal property or named or designated in a written agreement with a third party as having joint authority to dispose of or encumber the community personal property that is described in or that is the subject of the agreement, both domestic partners must join to dispose of or encumber such community personal property where the names of the domestic partners are joined by the word "and". Where the names of the domestic partners are joined by the word "or", or by the words "and/or", either domestic partner alone may dispose of or encumber such community personal property." Section 32. A new Section 40A-3-16 NMSA 1978 is enacted to read: "40A-3-16. [NEW MATERIAL] DISPOSITION AND MANAGEMENT OF REAL PROPERTY WITHOUT JOINDER--MANAGEMENT OF COMMUNITY PERSONAL PROPERTY SUBJECT TO MANAGEMENT OF ONE DOMESTIC PARTNER ALONE WHERE DOMESTIC PARTNER HAS DISAPPEARED.-- A. If a domestic partner disappears and the partner's location is unknown to the other domestic partner, the other domestic partner may, not less than thirty days after such disappearance, file a petition setting forth the facts that make it desirable for the petitioning domestic partner to engage in a transaction for which joinder of both domestic underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 26 - partners is required by Section 40A-3-14 NMSA 1978 or to manage, control, dispose of or encumber community personal property that the disappearing domestic partner alone has sole authority to manage, control, dispose of or encumber under Section 40A-3-15 NMSA 1978. B. The petition shall be filed in a district court of any county in which real property described in the petition is located or, if only community personal property is involved, in the district court of the county where the disappearing domestic partner resided. C. The district court shall appoint a guardian ad litem for the domestic partner who has disappeared and shall allow a reasonable fee for the guardian's services. D. A notice, stating that the petition has been filed and specifying the date of the hearing, accompanied by a copy of the petition, shall be issued and served on the guardian ad litem and shall be published once each week for four successive weeks in a newspaper of general circulation in the county in which the proceeding is pending. The last such publication shall be made at least twenty days before the hearing. E. After the hearing, and upon determination of the fact of disappearance by one domestic partner, the district court may allow the petitioning domestic partner alone to engage in the transaction for which joinder of both domestic underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 27 - partners is required by Section 40A-3-14 NMSA 1978 or to manage, control, dispose of or encumber community personal property that the disappearing domestic partner alone has authority to manage, control, dispose of or encumber under Section 40A-3-15 NMSA 1978. F. Any transfer, conveyance, mortgage or lease authorized by the district court pursuant to Subsection E of this section shall be confirmed by order of the district court, and that order of confirmation may be recorded in the office of the county clerk of the county where any real property affected thereby is situated." Section 33. A new Section 40A-3-17 NMSA 1978 is enacted to read: "40A-3-17. [NEW MATERIAL] JUDGMENTS TO BE RECORDED.--All orders rendered pursuant to Chapter 45, Article 5 NMSA 1978 authorizing the transfer, conveyance, mortgage or lease of community real property or other real property owned by the domestic partners as cotenants in joint tenancy or tenancy in common may be recorded in the office of the county clerk of the county where any real property affected thereby is situated." Section 34. A new Section 40A-4-1 NMSA 1978 is enacted to read: "40A-4-1. [NEW MATERIAL] SHORT TITLE.--Chapter 40A, Article 4 NMSA 1978 may be cited as the "Prepartnership Agreement Act"." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 28 - Section 35. A new Section 40A-4-2 NMSA 1978 is enacted to read: "40A-4-2. [NEW MATERIAL] DEFINITIONS.--As used in the Prepartnership Agreement Act: A. "prepartnership agreement" means an agreement between prospective domestic partners made in contemplation of domestic partnership and to be effective upon entry into domestic partnership; and B. "property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings." Section 36. A new Section 40A-4-3 NMSA 1978 is enacted to read: "40A-4-3. [NEW MATERIAL] FORMALITIES.--A prepartnership agreement shall be in writing, signed by both parties and acknowledged. It is enforceable without consideration." Section 37. A new Section 40A-4-4 NMSA 1978 is enacted to read: "40A-4-4. [NEW MATERIAL] CONTENT.-- A. Parties to a prepartnership agreement may contract with respect to: (1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; (2) the right to buy, sell, use, transfer, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 29 - exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of or otherwise manage and control property; (3) the disposition of property upon separation, domestic partnership dissolution, death or the occurrence or nonoccurrence of any other event; (4) the making of a will, trust or other arrangement to carry out the provisions of the agreement; (5) the ownership rights in and disposition of the death benefit from a life insurance policy; (6) the choice of law governing the construction of the agreement; and (7) any other matter not in violation of public policy. B. A prepartnership agreement may not adversely affect the right of a child or domestic partner to support, a party's right to child custody or visitation, a party's choice of abode or a party's freedom to pursue career opportunities." Section 38. A new Section 40A-4-5 NMSA 1978 is enacted to read: "40A-4-5. [NEW MATERIAL] EFFECT OF DOMESTIC PARTNERSHIP.--A prepartnership agreement becomes effective upon the establishment of the domestic partnership." Section 39. A new Section 40A-4-6 NMSA 1978 is enacted to read: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 30 - "40A-4-6. [NEW MATERIAL] AMENDMENT--REVOCATION.--After establishment of a domestic partnership, a prepartnership agreement may be amended or revoked only by a written agreement signed and acknowledged by the parties or by a consistent and mutual course of conduct that evidences an amendment to or revocation of the prepartnership agreement. The amended agreement or the revocation is enforceable without consideration." Section 40. A new Section 40A-4-7 NMSA 1978 is enacted to read: "40A-4-7. [NEW MATERIAL] ENFORCEMENT.-- A. A prepartnership agreement is not enforceable if the party against whom enforcement is sought proves that: (1) that party did not execute the agreement voluntarily; or (2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party: (a) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (b) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 31 - (c) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. B. An issue of unconscionability or voluntariness of a prepartnership agreement shall be decided by the court as a matter of law." Section 41. A new Section 40A-4-8 NMSA 1978 is enacted to read: "40A-4-8. [NEW MATERIAL] ENFORCEMENT--VOID DOMESTIC PARTNERSHIP.--If a domestic partnership is determined to be void, an agreement that would otherwise have been a prepartnership agreement is enforceable only to the extent necessary to avoid an inequitable result." Section 42. A new Section 40A-4-9 NMSA 1978 is enacted to read: "40A-4-9. [NEW MATERIAL] LIMITATION OF ACTIONS.--Any statute of limitations applicable to an action asserting a claim for relief under a prepartnership agreement is tolled during the domestic partnership of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party." Section 43. A new Section 40A-5-1 NMSA 1978 is enacted to read: "40A-5-1. [NEW MATERIAL] DISSOLUTION OF DOMESTIC underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 32 - PARTNERSHIP.--On the petition of either party to a domestic partnership, a district court may decree a dissolution of domestic partnership on any of the following grounds: A. incompatibility; B. cruel and inhuman treatment; C. sexual infidelity; or D. abandonment." Section 44. A new Section 40A-5-2 NMSA 1978 is enacted to read: "40A-5-2. [NEW MATERIAL] INCOMPATIBILITY.--Incompatibility exists when, because of discord or conflict of personalities, the legitimate ends of the domestic partnership relationship are destroyed, preventing any reasonable expectation of reconciliation." Section 45. A new Section 40A-5-3 NMSA 1978 is enacted to read: "40A-5-3. [NEW MATERIAL] PROCEEDING FOR DIVISION OF PROPERTY, DISPOSITION OF CHILDREN OR DOMESTIC PARTNER SUPPORT WITHOUT DISSOLUTION OF THE DOMESTIC PARTNERSHIP.--Whenever the domestic partners have permanently separated and no longer live or cohabit together as domestic partners, either partner may institute proceedings in the district court for a division of property, disposition of children or domestic partner support without asking for or obtaining in the proceedings a dissolution of domestic partnership." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 33 - Section 46. A new Section 40A-5-4 NMSA 1978 is enacted to read: "40A-5-4. [NEW MATERIAL] VENUE--JURISDICTION OVER PROPERTY.--Any proceeding for the dissolution of domestic partnership, division of property, disposition of children or domestic partner support, as provided for in this chapter, may be instituted in the county where either of the parties resides. In such proceedings, the court shall have jurisdiction of all property of the parties, wherever located or situated in the state." Section 47. A new Section 40A-5-5 NMSA 1978 is enacted to read: "40A-5-5. [NEW MATERIAL] DISSOLUTION OF DOMESTIC PARTNERSHIP--JURISDICTION--DOMICILE.-- A. The district court has jurisdiction to decree a dissolution of domestic partnership when at the time of filing the petition either party has resided in this state for at least six months immediately preceding the date of the filing and has a domicile in New Mexico. As used in this subsection, "domicile" means that the person to whom it applies: (1) is physically present in this state and has a place of residence in this state; and (2) has a present intention in good faith to reside in this state permanently or indefinitely. B. Persons serving in any military branch of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 34 - United States government who have been continuously stationed at any military base or installation in New Mexico for a period of six months shall, for the purposes of this section, be deemed to have a domicile of the state and county where the military base or installation is located. C. Any person who had resided continuously in New Mexico for at least six months immediately prior to the person's or the person's domestic partner's entry into any military branch of the United States government and who is stationed or whose domestic partner is stationed at any military base or installation outside of New Mexico and who has a present intention in good faith to return and to reside in this state permanently or indefinitely shall, for the purposes of this section, be deemed to have a domicile of the state and county of the person's residence immediately prior to the person's or the person's domestic partner's entry into the military branch. D. Notwithstanding the provisions of this section, the district court has jurisdiction over proceedings relating to a domestic partnership as provided in Section 40A-1-5 NMSA 1978." Section 48. A new Section 40A-5-6 NMSA 1978 is enacted to read: "40A-5-6. [NEW MATERIAL] VERIFICATION OF PETITION.--The petition in all proceedings for the dissolution of domestic underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 35 - partnership, division of property, disposition of children or domestic partner support shall be verified by the affidavit of the petitioner." Section 49. A new Section 40A-5-7 NMSA 1978 is enacted to read: "40A-5-7. [NEW MATERIAL] PROCEEDINGS--DOMESTIC PARTNER SUPPORT--SUPPORT OF CHILDREN--DIVISION OF PROPERTY.-- A. In any proceeding for the dissolution of domestic partnership, division of property, disposition of children or domestic partner support, the court may make and enforce by attachment or otherwise an order to restrain the use or disposition of the property of either party or for the control of the children or to provide for the support of either party during the pendency of the proceeding, as in its discretion may seem just and proper. The court may make an order, relative to the expenses of the proceeding, as will ensure either party an efficient preparation and presentation of the party's case. B. On final hearing, the court: (1) may allow either party such a reasonable portion of the domestic partner's property or such a reasonable sum of money to be paid by either domestic partner either in a single sum or in installments, as domestic partner support as under the circumstances of the case may seem just and proper, including a court award of: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 36 - (a) rehabilitative domestic partner support that provides the receiving domestic partner with education, training, work experience or other forms of rehabilitation that increases the receiving domestic partner's ability to earn income and become self-supporting. The court may include a specific rehabilitation plan with its award of rehabilitative domestic partner support and may condition continuation of the support upon compliance with that plan; (b) transitional domestic partner support to supplement the income of the receiving domestic partner for a limited period of time; provided that the period shall be clearly stated in the court's final order; (c) domestic partner support for an indefinite duration; (d) a single sum to be paid in one or more installments that specifies definite amounts, subject only to the death of the receiving domestic partner; or (e) a single sum to be paid in one or more installments that specifies definite amounts, not subject to any contingencies, including the death of the receiving domestic partner; (2) may: (a) modify and change any order with respect to domestic partner support awarded pursuant to the provisions of Subparagraph (a), (b) or (c) of Paragraph (1) of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 37 - this subsection whenever the circumstances render such change proper; or (b) designate domestic partner support awarded pursuant to the provisions of Subparagraph (a) or (b) of Paragraph (1) of this subsection as nonmodifiable with respect to the amount or duration of the support payments; (3) may set apart out of the property or income of the respective parties such portion for the maintenance and education of: (a) their unemancipated minor children as may seem just and proper; or (b) their children until the children's graduation from high school if the children are emancipated only by age, are under nineteen and are attending high school; and (4) may make such an order for the guardianship, care, custody, maintenance and education of the minor children, or with reference to the control of the property of the respective parties to the proceeding, or with reference to the control of the property decreed or fund created by the court for the maintenance and education of the minor children, as may seem just and proper. C. The court may order and enforce the payment of support for the maintenance and education after high school of emancipated children of the domestic partnership pursuant to a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 38 - written agreement between the parties. D. An award of domestic partner support made pursuant to the provisions of Subparagraph (a), (b), (c) or (d) of Paragraph (1) of Subsection B of this section shall terminate upon the death of the receiving domestic partner, unless the court order of domestic partner support provides otherwise. E. When making determinations concerning domestic partner support to be awarded pursuant to the provisions of Paragraph (1) or (2) of Subsection B of this section, the court shall consider: (1) the age and health of and the means of support for the respective domestic partners; (2) the current and future earnings and the earning capacity of the respective domestic partners; (3) the good-faith efforts of the respective domestic partners to maintain employment or to become self- supporting; (4) the reasonable needs of the respective domestic partners, including: (a) the standard of living of the respective domestic partners during the term of the domestic partnership; (b) the maintenance of medical insurance for the respective domestic partners; and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 39 - (c) the appropriateness of life insurance, including its availability and cost, insuring the life of the person who is to pay support to secure the payments, with any life insurance proceeds paid on the death of the paying domestic partner to be in lieu of further support; (5) the duration of the domestic partnership; (6) the amount of the property awarded or confirmed to the respective domestic partners; (7) the type and nature of the respective domestic partners' assets; provided that potential proceeds from the sale of property by either domestic partner shall not be considered by the court, unless required by exceptional circumstances and the need to be fair to the parties; (8) the type and nature of the respective domestic partners' liabilities; (9) income produced by property owned by the respective domestic partners; and (10) agreements entered into by the domestic partners in contemplation of the dissolution of domestic partnership or legal separation. F. The court shall retain jurisdiction over proceedings involving periodic domestic partner support payments when the parties have been in the domestic partnership for twenty years or more prior to the dissolution of the domestic partnership, unless the court order or decree underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 40 - specifically provides that no domestic partner support shall be awarded. G. The court may modify and change any order or agreement merged into an order with respect to the guardianship, care, custody, maintenance or education of the children whenever circumstances render such change proper. The district court shall have exclusive jurisdiction of all matters pertaining to the guardianship, care, custody, maintenance and education of the children until the parents' obligation of support for their children terminates. The district court shall also have exclusive, continuing jurisdiction with reference to the property decreed or funds created for the children's maintenance and education." Section 50. A new Section 40A-5-8 NMSA 1978 is enacted to read: "40A-5-8. [NEW MATERIAL] USE OF LIFE INSURANCE POLICY AS SECURITY.-- A. In any proceeding brought pursuant to the provisions of Section 40A-5-7 NMSA 1978 or in any other proceeding for the division of property or domestic partner or child support brought pursuant to the provisions of Chapter 40A NMSA 1978, the court may require either party or both parties to the proceeding to maintain the minor children of the parties or a domestic partner or former domestic partner or spouse as beneficiaries on a life insurance policy as security for the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 41 - payment of: (1) support for the benefit of the minor children; (2) domestic partner or spousal support; or (3) the cost to equalize a property division in the event of the death of the insured on the life insurance policy. B. The court may also allocate the cost of the premiums of the life insurance policy between the parties." Section 51. A new Section 40A-5-9 NMSA 1978 is enacted to read: "40A-5-9. [NEW MATERIAL] BINDING ARBITRATION OPTION-- PROCEDURE.-- A. Parties to an action for dissolution, separation, custody or time-sharing, child support, domestic partner support, partnership property and debt division or attorney fees related to such matters, including any post- judgment proceeding, may stipulate to binding arbitration by a signed agreement that provides for an award with respect to one or more of the following issues: (1) valuation and division of real and personal property; (2) child support, custody, time-sharing or visitation; (3) domestic partner support; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 42 - (4) costs, expenses and attorney fees; (5) enforceability of prepartnership or other partnership agreements; (6) determination and allocation of responsibility for debt as between the parties; (7) any civil tort claims related to any of the foregoing; or (8) other contested domestic relations matters. B. A court may not order a party to participate in arbitration except to the extent a party has agreed to participate pursuant to a written arbitration agreement. When the party involved is a minor, the party's parent must consent to arbitration. When the party involved is a minor with a guardian ad litem, the guardian ad litem must provide written consent. When the party involved is a minor without a guardian ad litem, in order for arbitration to proceed, the court must find that arbitration is in the best interest of the minor. C. Arbitration pursuant to this section shall be heard by one or more arbitrators. The court shall appoint an arbitrator agreed to by the parties if the arbitrator consents to the appointment. D. If the parties have not agreed to an arbitrator, the court shall appoint an arbitrator who: (1) is an attorney in good standing with the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 43 - state bar of New Mexico; (2) has practiced as an attorney for not less than five years immediately preceding the appointment and actively practiced in the area of domestic relations during three of those five years. Any period of time during which a person serves as a judge, special master or child support hearing officer is considered as actively practicing in the area of domestic relations; or (3) is another professional licensed and experienced in the subject matter that is the area of the dispute. E. An arbitrator appointed pursuant to this section is immune from liability with regard to the arbitration proceeding to the same extent as the judge who has jurisdiction of the action submitted to arbitration. F. Objections to the qualifications of an arbitrator must be raised in connection with the appointment by the court or they are waived. The court shall permit a party to raise objections based on qualifications within ten days of appointment of an arbitrator. Parties who agree on an arbitrator waive objections to the arbitrator's qualifications. G. An arbitrator appointed pursuant to this section: (1) shall hear and make an award on each issue submitted for arbitration pursuant to the arbitration agreement underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 44 - subject to the provisions of the agreement; and (2) has all of the following powers and duties: (a) to administer an oath or issue a subpoena as provided by court rule; (b) to issue orders regarding discovery proceedings relative to the issues being arbitrated, including appointment of experts; and (c) to allocate arbitration fees and expenses between the parties, including imposing a fee or expense on a party or attorney as a sanction for failure to provide information, subject to provisions of the arbitration agreement. H. An arbitrator, attorney or party in an arbitration proceeding shall disclose in writing any circumstances that may affect an arbitrator's impartiality, including bias, financial interests, personal interests or family relationships. Upon disclosure of such a circumstance, a party may request disqualification of the arbitrator. If the arbitrator does not withdraw within seven days after a request for disqualification, the party may file a motion for disqualification with the court. I. If the court finds that the arbitrator is disqualified, the court may appoint another arbitrator, subject to the provisions of the arbitration agreement. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 45 - J. As soon as practicable after the appointment of the arbitrator, the parties and attorneys shall confer with the arbitrator to consider all of the following: (1) scope of the issues submitted; (2) date, time and place of the hearing; (3) witnesses, including experts, who may testify; (4) appointment of experts and a schedule for exchange of expert reports or summary of expert testimony; and (5) subject to the provisions of Subsection K of this section, exhibits, documents or other information each party considers material to the case and a schedule for production or exchange of the information. An objection not made before the hearing to production or lack of production of information is waived. K. The arbitrator shall order reasonable access to information for each party that is material to the arbitration issues prior to the hearing, including the following: (1) a current complete sworn financial disclosure statement, when financial matters are at issue; (2) if a court has issued an order concerning an issue subject to arbitration, a copy of the order; (3) any relevant documents related to the arbitration issues defined by the arbitrator; (4) proposed award by each party for each underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 46 - issue subject to arbitration; and (5) opinions of experts to be used by either party or appointed by the arbitrator. L. Except as provided by this section, court rule or the arbitration agreement, a record shall not be made of an arbitration hearing unless either party requests it. If a record is not required, an arbitrator may make a record to be used only by the arbitrator to aid in reaching the arbitrator's decision. M. Unless waived by the parties, a record shall be made of that portion of the hearing that concerns child custody, visitation or time-sharing. N. The arbitration agreement may set forth any standards on which an award should be based, including the law to be applied. An arbitration agreement shall provide that in deciding child support issues, the arbitrator shall apply Section 40-4-11.1 NMSA 1978 when setting or modifying a child support order. O. Unless otherwise agreed to by the parties and arbitrator in writing or on the record, the arbitrator shall issue the written award on each issue within sixty days after the end of the hearing and after receipt of proposed findings of fact and conclusions of law if requested by the arbitrator. P. If the parties reach an agreement regarding child custody, time-sharing or visitation, the agreement shall underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 47 - be placed on the record by the parties under oath and shall be included in the arbitrator's written award. Q. The arbitrator retains jurisdiction to correct errors or omissions in an award upon motion by a party to the arbitrator within twenty days after the award is issued or upon the arbitrator's own motion. Another party to the arbitration may respond to the motion within seven days after the motion is made. The arbitrator shall make a decision on the motion within seven days after the expiration of the response time period. R. The court shall enforce an arbitrator's award or other order in the same manner as an order issued by the court. A party may make a motion to the court to enforce an arbitrator's award or order. S. A party in an action that was submitted to arbitration shall file with the court a stipulated order or a motion to enforce the award within twenty-one days after the arbitrator's award is issued unless otherwise agreed to by the parties in writing or unless the arbitrator or court grants an extension. T. If a party applies to the court for vacation of an arbitrator's award that concerns child custody, time-sharing or visitation, the court shall review the award based only upon the record of the arbitration hearing and factual matters that have arisen since the arbitration hearing that are relevant to underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 48 - the claim. The court may vacate an award of custody, time- sharing or visitation made in binding arbitration if the court finds that circumstances have changed since issuance of the award that are adverse to the best interests of the child, upon a finding that the award will cause harm or be detrimental to a child or pursuant to Subsections U and V of this section. An arbitration agreement may provide a broader scope of review of custody, time-sharing or visitation issues by the court, and such review will apply if broader than this section. U. If a party applies to the court for vacation or modification of an arbitrator's award, the court shall review the award only as provided in Subsections T and V of this section. V. The court may vacate, modify or correct an award under any of the following circumstances: (1) the award was procured by corruption, fraud or other undue means; (2) there was evident partiality by an arbitrator or misconduct prejudicing a party's rights; (3) the arbitrator exceeded the arbitrator's powers; or (4) the arbitrator refused to postpone the hearing on a showing of sufficient cause or refused to hear evidence substantial and material to the controversy. W. An application to vacate an award on grounds underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 49 - stated in Subsections T and V of this section shall be decided by the court. If an award is vacated on grounds stated in Paragraph (3) or (4) of Subsection V of this section, the court may order a rehearing before the arbitrator who made the award when both parties consent to the rehearing before the arbitrator who made the award. X. An appeal from an arbitration award that the court confirms, vacates, modifies or corrects shall be taken in the same manner as from an order or judgment in other domestic relations actions. Y. No arbitrator may decide issues of a criminal nature or make decisions on petitions pursuant to the Family Violence Protection Act." Section 52. A new Section 40A-5-10 NMSA 1978 is enacted to read: "40A-5-10. [NEW MATERIAL] ACCRUAL OF INTEREST--DELINQUENT CHILD AND DOMESTIC PARTNER SUPPORT.-- A. Interest shall accrue on delinquent child support at the rate of four percent and domestic partner support at the rate set forth in Section 56-8-4 NMSA 1978 in effect when the support payment becomes due and shall accrue from the date the support is delinquent until the date the support is paid. B. Interest shall accrue on a consolidated judgment for delinquent child support at the rate of four percent when underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 50 - the consolidated judgment is entered until the judgment is satisfied. C. Unless the order, judgment, decree or wage withholding order specifies a due date other than the first day of the month, support shall be due on the first day of each month and, if not paid by that date, shall be delinquent. D. In calculation of support arrears, payments of support shall be first applied to the current support obligation, next to any delinquent support, next to any consolidated judgment of delinquent support, next to any accrued interest on delinquent support and next to any interest accrued on a consolidated judgment of delinquent support. E. The human services department shall have the authority to forgive accrued interest on delinquent child support assigned to the state not otherwise specified in an order, judgment, decree or income withholding order if, in the judgment of the secretary of human services, forgiveness will likely result in the collection of more child support, domestic partner support or other support and will likely result in the satisfaction of the judgment, decree or wage withholding order. This authority shall include the ability to authorize the return of suspended licenses." Section 53. A new Section 40A-5-11 NMSA 1978 is enacted to read: "40A-5-11. [NEW MATERIAL] CHILD CUSTODY AND CHILD underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 51 - SUPPORT.--Proceedings relating to child custody and child support between domestic partners shall be determined as provided in this article, Sections 40-4-8 through 40-4-11.6 NMSA 1978 and other applicable laws." Section 54. A new Section 40A-5-12 NMSA 1978 is enacted to read: "40A-5-12. [NEW MATERIAL] APPOINTMENT OF GUARDIAN AD LITEM.--After service of summons and copy of petition on an insane domestic partner and on the guardian of that partner's estate, the court shall appoint an attorney at law as guardian ad litem to appear for and represent the insane domestic partner." Section 55. A new Section 40A-5-13 NMSA 1978 is enacted to read: "40A-5-13. [NEW MATERIAL] ALLOWANCE FROM DOMESTIC PARTNER'S SEPARATE PROPERTY AS DOMESTIC PARTNER SUPPORT.--In proceedings for the dissolution of domestic partnership, separation or support between domestic partners, the court may make an allowance to a domestic partner of the other partner's separate property as domestic partner support, and the decree making the allowance shall have the force and effect of vesting the title of the property in the recipient." Section 56. A new Section 40A-5-14 NMSA 1978 is enacted to read: "40A-5-14. [NEW MATERIAL] DOMESTIC PARTNER SUPPORT TO underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 52 - CONSTITUTE LIEN ON REAL ESTATE.-- A. The decree making the allowance for domestic partner support to either domestic partner shall be a lien on the real estate of the obligor domestic partner from the date of filing of a notice of order or decree in the office of the county clerk of each county where any of the property is situated. B. The notice of order or decree shall contain: (1) the caption of the case from which the duty of domestic partner support arose, including the state, county and court in which the case was heard, the case number and the names of the parties when the case was heard; (2) the date of entry of the judgment, order or decree from which the duty of domestic partner support arose; (3) the current names, social security numbers and dates of birth of the parties; and (4) each party's last known address, unless ordered otherwise in the judgment, order or decree from which the duty of domestic partner support arose. C. The notice shall be executed and acknowledged in the same manner as a grant of land is executed and acknowledged. D. A copy of the recorded notice shall be sent to the obligor domestic partner at the obligor's last known underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 53 - address." Section 57. A new Section 40A-5-15 NMSA 1978 is enacted to read: "40A-5-15. [NEW MATERIAL] ALLOWANCE IN PROPERTY-- APPOINTMENT AND REMOVAL OF GUARDIAN.--In proceedings for the dissolution of domestic partnership, separation or support between domestic partners, the court may make an allowance of certain property or properties of either party or of both parties for the maintenance, education and support of the minor children of the parties and may vest title to the part of the property so allowed in a conservator appointed by the court. The conservator must qualify and serve in such capacity as provided in Article 5 of the Uniform Probate Code." Section 58. A new Section 40A-5-16 NMSA 1978 is enacted to read: "40A-5-16. [NEW MATERIAL] CHILD SUPPORT TO CONSTITUTE LIEN ON REAL AND PERSONAL PROPERTY.-- A. In case a sum of money is allowed to the children by the decree for the support, education or maintenance of the children, the decree shall become a lien on the real and personal property of the obligor party from the date of filing of a notice of order or decree in the office of the county clerk of each county where any of the property may be situated. B. The notice of order or decree shall contain: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 54 - (1) the caption of the case from which the duty of child support arose, including the state, county and court in which the case was heard, the case number and the names of the parties when the case was heard; (2) the date of entry of the judgment, order or decree from which the duty of child support arose; (3) the current names, social security numbers and dates of birth of the parties; and (4) each party's last known address, unless ordered otherwise in the judgment, order or decree from which the duty of child support arose. C. The notice shall be executed and acknowledged in the same manner as a grant of land is executed and acknowledged. D. A copy of the recorded notice shall be sent to the obligor domestic partner at the obligor's last known address." Section 59. A new Section 40A-5-17 NMSA 1978 is enacted to read: "40A-5-17. [NEW MATERIAL] SATISFACTION OF LIENS.--The liens created by Sections 40A-5-13 through 40A-5-19 NMSA 1978 may be satisfied by execution or may be foreclosed under the same procedure as is now allowed for the foreclosure of judgment liens." Section 60. A new Section 40A-5-18 NMSA 1978 is enacted underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 55 - to read: "40A-5-18. [NEW MATERIAL] MOTION TO REMOVE LIEN--BOND.-- The district court upon motion made in the cause wherein the decree was rendered may remove the liens created by Sections 40A-5-13 through 40A-5-19 NMSA 1978 upon notice and upon good cause shown from any or all of the real estate subject to such lien. The judge, in the judge's discretion, upon the removal of such lien, may require bond for the faithful performance of the payment of domestic partner or child support money in accordance with the decree." Section 61. A new Section 40A-5-19 NMSA 1978 is enacted to read: "40A-5-19. [NEW MATERIAL] ENFORCEMENT OF DECREE BY ATTACHMENT, GARNISHMENT, EXECUTION OR CONTEMPT PROCEEDINGS.-- Nothing in Sections 40A-5-13 through 40A-5-19 NMSA 1978 shall prevent a person entitled to benefits of any decree for domestic partner support or child support from enforcing the decree by attachment, garnishment, execution or contempt proceedings as provided by statute, except that the filing of an affidavit that the defendant has no property within the state subject to execution to satisfy the judgment shall not be a prerequisite to the issuance of a garnishment." Section 62. A new Section 40A-5-20 NMSA 1978 is enacted to read: "40A-5-20. [NEW MATERIAL] FAILURE TO DIVIDE OR DISTRIBUTE underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 56 - PROPERTY ON THE ENTRY OF A DECREE OF DISSOLUTION OR SEPARATION--DIVISION OF PROPERTY AND DISTRIBUTION OF SUPPORT WHEN DEATH OCCURS DURING PROCEEDINGS.-- A. The failure to divide or distribute property on the entry of a decree of dissolution of domestic partnership or of separation shall not affect the property rights of either domestic partner, and either may subsequently institute and prosecute a suit for division and distribution or with reference to any other matter pertaining thereto that could have been litigated in the original proceeding for dissolution or separation. B. Upon the filing and service of a petition for dissolution of domestic partnership, separation, annulment, division of property or debts, domestic partner support, child support or determination of parentage pursuant to the provisions of Chapter 40, Article 11A or Chapter 40A, Article 5 NMSA 1978, if a party to the action dies during the pendency of the action, but prior to the entry of a decree granting dissolution of domestic partnership, separation, annulment or determination of parentage, the proceedings for the determination, division and distribution of property rights and debts, distribution of domestic partner support or child support or determination of parentage shall not abate. The court shall conclude the proceedings as if both parties had survived. The court may allow the domestic partner or any underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 57 - children of the domestic partnership support as if the decedent had survived, pursuant to the provisions of Chapter 40, Article 11A or Chapter 40A, Article 5 NMSA 1978. In determining the support, the court shall, in addition to the factors listed in Chapter 40A, Article 5 NMSA 1978, consider the amount and nature of the property passing from the decedent to the person for whom the support would be paid, whether by will or otherwise." Section 63. Section 1-1-7 NMSA 1978 (being Laws 1969, Chapter 240, Section 6, as amended) is amended to read: "1-1-7. RESIDENCE--RULES FOR DETERMINING.--For the purpose of determining residence for voting, the place of residence is governed by the following rules. A. The residence of a person is that place in which [his] the person's habitation is fixed, and to which, whenever [he] the person is absent, [he] the person has the intention to return. B. The place where a person's family resides is presumed to be [his] the person's place of residence, but a person who takes up or continues [his abode] residence with the intention of remaining at a place other than where [his] the person's family resides is a resident where [he abides] the person resides. C. A change of residence is made only by the act of removal joined with the intent to remain in another place. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 58 - There can be only one residence. D. A person does not gain or lose residence solely by reason of [his] the person's presence or absence while employed in the service of the United States or of this state, or while a student at an institution of learning, or while kept in an institution at public expense, or while confined in a public prison or while residing upon an Indian or military reservation. E. No member of the armed forces of the United States, [his] the member's spouse or [his] domestic partner or the member's dependent is a resident of this state solely by reason of being stationed in this state. F. A person does not lose [his] residence if [he] the person leaves [his] the person's home and goes to another country, state or place within this state for temporary purposes only and with the intention of returning. G. A person does not gain a residence in a place to which [he] the person comes for temporary purposes only. H. A person loses [his] residence in this state if [he] the person votes in another state in an election requiring residence in that state, and has not upon [his] return regained [his] the person's residence in this state under the provisions of the constitution of New Mexico. I. "Residence" is computed by not including the day on which the person's residence commences and by including the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 59 - day of the election. J. A person does not acquire or lose residence by marriage or domestic partnership only." Section 64. Section 1-2-7 NMSA 1978 (being Laws 1969, Chapter 240, Section 29, as amended) is amended to read: "1-2-7. PRECINCT BOARD--QUALIFICATION OF MEMBERS-- QUALIFICATION OF PRESIDING JUDGES.-- A. In order to qualify as a member of the precinct board, a person shall: (1) be a resident of the representative district and county in which the precinct where [he] the person is a voter is located; (2) be able to read and write; (3) have the necessary capacity to carry out [his] the precinct board member's functions with acceptable skill and dispatch; and (4) execute the precinct board member's oath of office. B. Before serving as a presiding judge of a precinct board, a person shall receive training in the duties of that position and be certified for the position by the county clerk. C. No person shall be qualified for appointment or service on a precinct board: (1) who is a candidate for any federal, state, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 60 - district or county office; (2) who is a spouse, domestic partner, parent, child, brother or sister of any candidate to be voted for at the election; or (3) who is a sheriff, deputy sheriff, marshal, deputy marshal or state or municipal [policeman] police officer." Section 65. Section 1-2-22 NMSA 1978 (being Laws 1969, Chapter 240, Section 41, as amended) is amended to read: "1-2-22. CHALLENGERS--QUALIFICATIONS--RESTRICTIONS.-- Challengers and alternate challengers shall be voters of a precinct located in that county to which they are appointed. No sheriff, deputy sheriff, marshal, deputy marshal, municipal or state police officer, candidate or any person who is a spouse, domestic partner or child of a candidate being voted on at the election shall serve as a challenger or alternate challenger." Section 66. Section 1-2-31 NMSA 1978 (being Laws 2005, Chapter 270, Section 15) is amended to read: "1-2-31. COUNTY CANVASS OBSERVERS.-- A. A candidate for elected office and an election-related organization may each appoint one county canvass observer per county if the candidate or organization makes a written request to the secretary of state or county clerk at least ten days prior to the election date and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 61 - specifies the county canvass to be watched and the name of the qualified appointee. A county chair of a qualified political party may appoint as many observers as the chief election officer for that county determines is functional; provided that the state or county chair may appoint at least three observers and that the number of observers for each major political party is identical. B. County canvass observers shall be voters of a precinct located in that county to which they are appointed. No sheriff, deputy sheriff, marshal, deputy marshal, municipal or state police officer, candidate or person who is a spouse, domestic partner, parent or child of a candidate being voted on at the election shall serve as a county canvass observer. C. The county canvass observer, upon presentation of the observer's written appointment to the county clerk, shall be permitted to be present from the time the county canvassing begins until the completion of the canvass. D. Only one county canvass observer for each candidate and each election-related organization in each county shall be permitted at one time in the room in which the canvass is being conducted. An observer is strictly limited to observing and documenting the canvassing process and may not interrupt the canvassing process. E. County canvass observers shall not interfere with the orderly conduct of the canvass and may be removed by underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 62 - the chief election officer if the observer does not comply with the law. F. As used in this section: (1) "county canvass" means the process of qualifying and verifying paper ballots and counting and tallying votes for each precinct beginning upon the closing of the polls and ending with the certification and announcement of the results by the county canvassing board; and (2) "election-related organization" means an organization involved in voter turnout activities." Section 67. Section 1-4-25 NMSA 1978 (being Laws 1969, Chapter 240, Section 81, as amended) is amended to read: "1-4-25. CANCELLATION OF REGISTRATION--DETERMINATION OF DEATH.-- A. For purposes of cancellation of registration, the death of a voter shall be ascertained by obituary notices or probate records or by comparison of registration records with monthly certified lists of deceased residents filed with the secretary of state. B. The state registrar of vital statistics shall file monthly with the secretary of state certified lists of deceased residents over the age of eighteen years, sorted by county, regardless of the place of death. C. The monthly certified list of deceased residents shall show the: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 63 - (1) name; (2) age; (3) sex; (4) marital status; (5) domestic partnership status; [(5)] (6) birth place; [(6)] (7) birth date; [(7)] (8) social security number, if any; [(8)] (9) address; and [(9)] (10) place and date of death of the deceased resident. D. The secretary of state shall, upon receipt of the monthly certified list of deceased residents, forward each county's list to the county clerk. E. The county clerk shall, upon receipt of the monthly certified list of deceased residents, cancel any deceased resident's certificate of registration. F. Upon receipt of a notarized document from the president or governor of an Indian nation, tribe or pueblo or from a tribal enrollment clerk indicating that a tribal member is deceased, the county clerk shall cancel the certification of registration of that deceased tribal member." Section 68. Section 1-4-26 NMSA 1978 (being Laws 1969, Chapter 240, Section 82, as amended by Laws 1993, Chapter 314, Section 22 and also by Laws 1993, Chapter 316, Section 22) is underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 64 - amended to read: "1-4-26. CANCELLATION OF REGISTRATION--DETERMINATION OF INSANITY.-- A. For purposes of cancellation of registration, the legal insanity of a voter shall be ascertained by comparison of registration records with the certification of legal insanity filed by the court with the county clerk. B. When in proceedings held pursuant to law the district court determines that a mentally ill individual is insane as that term is used in the constitution of New Mexico, it shall file a certification of such fact with the county clerk of the county wherein the individual is registered. C. The certification of legal insanity shall include the: (1) name; (2) age; (3) sex; (4) marital status; (5) domestic partnership status; [(5)] (6) birth place; [(6)] (7) birth date; [(7)] (8) social security number, if any; and [(8)] (9) address." Section 69. Section 1-6-2 NMSA 1978 (being Laws 1987, Chapter 327, Section 6, as amended) is amended to read: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 65 - "1-6-2. DEFINITIONS.--As used in the Absent Voter Act: A. "absent uniformed services voter" means: (1) a member of a uniformed service on active duty who, by reason of such active duty, is absent from the place of residence where the member is otherwise qualified to vote; (2) a member of the merchant marine who, by reason of service in the merchant marine, is absent from the place of residence where the member is otherwise qualified to vote; or (3) a spouse, domestic partner or dependent of a member referred to in [Paragraphs (1) and] Paragraph (1) or (2) of this subsection who, by reason of the active duty or service of the member, is absent from the place of residence where the spouse, domestic partner or dependent is otherwise qualified to vote; B. "election" means a statewide election, general election, primary election or special election to fill vacancies in the office of United States representative and regular or special school district elections; C. "electronic ballot" means a paper ballot or ballot face designed to be used on an electronic voting machine to cast votes; D. "electronic voting machine" means a computer- controlled machine designed to electronically record and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 66 - tabulate votes cast; E. "federal office" means the office of president or vice president or senator or representative in congress; F. "federal qualified elector" means: (1) an absent uniformed services voter; or (2) an absent uniformed services voter who, by reason of active duty or service, is absent from the United States on the date of the election involved; G. "member of the merchant marine" means an individual other than a member of a uniformed service or an individual employed, enrolled or maintained on the Great Lakes or the inland waterways who: (1) is employed as an officer or crew member of a vessel documented under the laws of the United States, a vessel owned by the United States or a vessel of a foreign-flag registry under charter to or control of the United States; or (2) is enrolled with the United States for employment or training for employment or maintained by the United States for emergency relief service as an officer or crew member of any such vessel; H. "overseas voter" means: (1) an absent uniformed services voter who, by reason of active duty or service, is absent from the United States on the date of the election involved; (2) a person who resides outside the United underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 67 - States and is qualified to vote in the last place in which the person was domiciled before leaving the United States; or (3) a person who resides outside the United States and, but for such residence, would be qualified to vote in the last place in which the person was domiciled before leaving the United States; and I. "uniformed services" means the army, navy, air force, marine corps and coast guard and the commissioned corps of the national oceanic and atmospheric administration." Section 70. Section 1-19-26 NMSA 1978 (being Laws 1979, Chapter 360, Section 2, as amended by Laws 2009, Chapter 67, Section 1 and by Laws 2009, Chapter 68, Section 2) is amended to read: "1-19-26. DEFINITIONS.--As used in the Campaign Reporting Act: A. "advertising campaign" means an advertisement or series of advertisements used for a political purpose and disseminated to the public either in print, by radio or television broadcast or by any other electronic means, including telephonic communications, and may include direct or bulk mailings of printed materials; B. "anonymous contribution" means a contribution the contributor of which is unknown to the candidate or the candidate's agent or the political committee or its agent who accepts the contribution; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 68 - C. "bank account" means an account in a financial institution located in New Mexico; D. "campaign committee" means two or more persons authorized by a candidate to raise, collect or expend contributions on the candidate's behalf for the purpose of electing the candidate to office; E. "candidate" means an individual who seeks or considers an office in an election covered by the Campaign Reporting Act, including a public official, who either has filed a declaration of candidacy or nominating petition or: (1) for a non-statewide office, has received contributions or made expenditures of one thousand dollars ($1,000) or more or authorized another person or campaign committee to receive contributions or make expenditures of one thousand dollars ($1,000) or more for the purpose of seeking election to the office; or (2) for a statewide office, has received contributions or made expenditures of two thousand five hundred dollars ($2,500) or more or authorized another person or campaign committee to receive contributions or make expenditures of two thousand five hundred dollars ($2,500) or more for the purpose of seeking election to the office or for candidacy exploration purposes in the years prior to the year of the election; F. "contribution" means a gift, subscription, loan, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 69 - advance or deposit of money or other thing of value, including the estimated value of an in-kind contribution, that is made or received for a political purpose, including payment of a debt incurred in an election campaign, but "contribution" does not include the value of services provided without compensation or unreimbursed travel or other personal expenses of individuals who volunteer a portion or all of their time on behalf of a candidate or political committee, nor does it include the administrative or solicitation expenses of a political committee that are paid by an organization that sponsors the committee; G. "deliver" or "delivery" means to deliver by certified or registered mail, telecopier, electronic transmission or facsimile or by personal service; H. "election" means any primary, general or statewide special election in New Mexico and includes county and judicial retention elections but excludes municipal, school board and special district elections; I. "election year" means an even-numbered year in which an election covered by the Campaign Reporting Act is held; J. "expenditure" means a payment, transfer or distribution or obligation or promise to pay, transfer or distribute any money or other thing of value for a political purpose, including payment of a debt incurred in an election underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 70 - campaign or pre-primary convention, but does not include the administrative or solicitation expenses of a political committee that are paid by an organization that sponsors the committee; K. "person" means an individual or entity; L. "political committee" means two or more persons, other than members of a candidate's immediate family or campaign committee or a husband and wife or partners in a domestic partnership who make a contribution out of a joint account, who are selected, appointed, chosen, associated, organized or operated primarily for a political purpose; and "political committee" includes: (1) political parties, political action committees or similar organizations composed of employees or members of any corporation, labor organization, trade or professional association or any other similar group that raises, collects, expends or contributes money or any other thing of value for a political purpose; (2) a single individual whose actions represent that the individual is a political committee; and (3) a person or an organization of two or more persons that within one calendar year expends funds in excess of five hundred dollars ($500) to conduct an advertising campaign for a political purpose; M. "political purpose" means influencing or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 71 - attempting to influence an election or pre-primary convention, including a constitutional amendment or other question submitted to the voters; N. "prescribed form" means a form or electronic format prepared and prescribed by the secretary of state; O. "proper filing officer" means either the secretary of state or the county clerk as provided in Section 1-19-27 NMSA 1978; P. "public official" means a person elected to an office in an election covered by the Campaign Reporting Act or a person appointed to an office that is subject to an election covered by that act; and Q. "reporting individual" means every public official, candidate or treasurer of a campaign committee and every treasurer of a political committee." Section 71. That version of Section 1-19-26 NMSA 1978 (being Laws 1979, Chapter 360, Section 2, as amended by Laws 2009, Chapter 67, Section 1 and by Laws 2009, Chapter 68, Section 2) that is to become effective November 3, 2010 is amended to read: "1-19-26. DEFINITIONS.--As used in the Campaign Reporting Act: A. "advertising campaign" means an advertisement or series of advertisements used for a political purpose and disseminated to the public either in print, by radio or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 72 - television broadcast or by any other electronic means, including telephonic communications, and may include direct or bulk mailings of printed materials; B. "anonymous contribution" means a contribution the contributor of which is unknown to the candidate or the candidate's agent or the political committee or its agent who accepts the contribution; C. "bank account" means an account in a financial institution located in New Mexico; D. "campaign committee" means two or more persons authorized by a candidate to raise, collect or expend contributions on the candidate's behalf for the purpose of electing the candidate to office; E. "candidate" means an individual who seeks or considers an office in an election covered by the Campaign Reporting Act, including a public official, who either has filed a declaration of candidacy or nominating petition or: (1) for a non-statewide office, has received contributions or made expenditures of one thousand dollars ($1,000) or more or authorized another person or campaign committee to receive contributions or make expenditures of one thousand dollars ($1,000) or more for the purpose of seeking election to the office; or (2) for a statewide office, has received contributions or made expenditures of two thousand five hundred underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 73 - dollars ($2,500) or more or authorized another person or campaign committee to receive contributions or make expenditures of two thousand five hundred dollars ($2,500) or more for the purpose of seeking election to the office or for candidacy exploration purposes in the years prior to the year of the election; F. "contribution" means a gift, subscription, loan, advance or deposit of money or other thing of value, including the estimated value of an in-kind contribution, that is made or received for a political purpose, including payment of a debt incurred in an election campaign, but "contribution" does not include the value of services provided without compensation or unreimbursed travel or other personal expenses of individuals who volunteer a portion or all of their time on behalf of a candidate or political committee, nor does it include the administrative or solicitation expenses of a political committee that are paid by an organization that sponsors the committee; G. "deliver" or "delivery" means to deliver by certified or registered mail, telecopier, electronic transmission or facsimile or by personal service; H. "election" means any primary, general or statewide special election in New Mexico and includes county and judicial retention elections but excludes municipal, school board and special district elections; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 74 - I. "election year" means an even-numbered year in which an election covered by the Campaign Reporting Act is held; J. "expenditure" means a payment, transfer or distribution or obligation or promise to pay, transfer or distribute any money or other thing of value for a political purpose, including payment of a debt incurred in an election campaign or pre-primary convention, but does not include the administrative or solicitation expenses of a political committee that are paid by an organization that sponsors the committee; K. "person" means an individual or entity; L. "political committee" means two or more persons, other than members of a candidate's immediate family or campaign committee or a husband and wife or partners in a domestic partnership who make a contribution out of a joint account, who are selected, appointed, chosen, associated, organized or operated primarily for a political purpose; and "political committee" includes: (1) political parties, political action committees or similar organizations composed of employees or members of any corporation, labor organization, trade or professional association or any other similar group that raises, collects, expends or contributes money or any other thing of value for a political purpose; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 75 - (2) a single individual whose actions represent that the individual is a political committee; and (3) a person or an organization of two or more persons that within one calendar year expends funds in excess of five hundred dollars ($500) to conduct an advertising campaign for a political purpose; M. "political purpose" means influencing or attempting to influence an election or pre-primary convention, including a constitutional amendment or other question submitted to the voters; N. "prescribed form" means a form or electronic format prepared and prescribed by the secretary of state; O. "proper filing officer" means either the secretary of state or the county clerk as provided in Section 1-19-27 NMSA 1978; P. "public official" means a person elected to an office in an election covered by the Campaign Reporting Act or a person appointed to an office that is subject to an election covered by that act; and Q. "reporting individual" means every public official, candidate or treasurer of a campaign committee and every treasurer of a political committee." Section 72. Section 2-4-2 NMSA 1978 (being Laws 1917, Chapter 77, Section 2) is amended to read: "2-4-2. DUTIES OF COMMISSIONERS.--It [shall be] is the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 76 - duty of [said] the commissioners for the promotion of uniformity of legislation in the United States to examine the subjects of marriage, domestic partnership, divorce, dissolution of domestic partnership and other subjects of legislation concerning which uniform legislation throughout the United States is desirable; to confer with like commissioners from other states concerning such matters; and to use their best efforts in bringing about such uniformity of legislation on all subjects [which] that they deem desirable." Section 73. Section 3-8-19 NMSA 1978 (being Laws 1971, Chapter 306, Section 8, as amended) is amended to read: "3-8-19. PRECINCT BOARDS--APPOINTMENTS--COMPENSATION.-- A. In order to qualify as a member of a precinct board, a person shall: (1) be a [resident] qualified elector of the municipality and a resident of the precinct or consolidated precinct within the jurisdiction of the precinct board. However, if there is a shortage or absence of precinct board members in certain precincts or consolidated precincts, a person who is a [resident] qualified elector of the municipality and a nonresident of the precinct or consolidated precinct may be appointed; (2) be able to read and write; (3) have the necessary capacity to carry out the functions of the office with acceptable skill and dispatch; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 77 - and (4) execute the precinct board member's oath of office. B. No person shall be qualified for appointment or service on a precinct board if that person is a: (1) candidate for any municipal office; (2) spouse, domestic partner, parent, child, brother or sister of any candidate to be voted for at the election; (3) sheriff, deputy sheriff, marshal, deputy marshal or state or municipal [policeman] police officer; (4) spouse, domestic partner, parent, child, brother or sister of the municipal clerk or any deputy or assistant municipal clerk; or (5) municipal clerk or deputy or assistant municipal clerk. C. Not less than thirty-five days before the day of the municipal election, the governing body shall appoint a precinct board for each polling place. The precinct board shall consist of no fewer than three members. Each board shall have no fewer than three election judges and no fewer than two election clerks. Election judges may also be appointed as election clerks. Not less than two alternates shall be appointed who shall become either election judges or election clerks or both as the need arises. On the thirty-fifth day underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 78 - before the day of the election, the municipal clerk shall post and maintain in the clerk's office until the day of the election the names of the election judges, election clerks and alternates for each polling place. The posting of the names of the election judges, election clerks and alternates for each polling place may be proved by an affidavit signed by the municipal clerk. The municipal clerk shall, by mail, notify each person appointed, request a written acceptance and keep a record of all notifications and acceptances. The notice shall state the date by which the person must accept the appointment. If any person appointed to a precinct board, or as an alternate, fails to accept an appointment within seven days after the notice is sent, the position shall be deemed vacant and the position shall be filled as provided in this section. D. The county clerk shall furnish upon request of the municipal clerk the names and addresses of qualified precinct board members for general elections, and such precinct board members may be appointed as precinct board members for municipal elections. E. The municipal clerk shall appoint a qualified elector as a precinct board member to fill any vacancy that may occur between the day when the list of precinct board members is posted and the day of the election. If a vacancy occurs on the day of the election, the precinct board members present at the polling place may appoint by a majority vote a qualified underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 79 - elector to fill the vacancy. If the vacancy was filled after the date of the election school, that person need not attend an election school in order to validly serve on the precinct board. F. Members of a precinct board shall be compensated for their services at the rate provided in Section 1-2-16 NMSA 1978 for the day of the election. The governing body may authorize payment to alternates who are required by the precinct board or municipal clerk to stand by on election day at the rate of not more than twenty dollars ($20.00) for the day of the election. G. Compensation shall be paid within thirty days following the date of election." Section 74. Section 3-8-31 NMSA 1978 (being Laws 1971, Chapter 306, Section 10, as amended) is amended to read: "3-8-31. REGULAR MUNICIPAL ELECTION--CHALLENGERS-- WATCHERS--OBSERVERS.-- A. Upon petition filed with the municipal clerk by an unopposed candidate or by both candidates for a municipal office, if only two candidates are running for the office, or by a majority of the candidates for a municipal office, if more than two candidates are running for the office, those candidates may: (1) appoint one person as a challenger and one alternate for each polling place in the municipal election; and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 80 - (2) appoint one person as a watcher and one alternate for each polling place in the municipal election. B. The petition appointing a challenger and watcher and alternates shall be filed not later than 5:00 p.m. on the fourth day preceding the election. C. Upon receipt of the petition, the municipal clerk shall verify whether the challengers, watchers and alternates are properly qualified pursuant to Subsection D of this section. Not later than 3:00 p.m. on the day prior to the election, the municipal clerk shall prepare official identification badges for those challengers, watchers and alternates who are properly qualified. Such identification badges shall be signed by the municipal clerk and contain the name of the challenger, watcher or alternate and state that person's title and the polling place where such person serves. Challengers, watchers and alternates shall be responsible to obtain their identification badges from the office of the municipal clerk prior to the opening of the polls on election day. D. A challenger, watcher or alternate shall function only at a polling place that serves the precinct within which such challenger, watcher or alternate resides. No sheriff, deputy sheriff, marshal, deputy marshal, municipal or state police officer, candidate or any person who is a spouse, domestic partner, parent, child, brother or sister of a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 81 - candidate to be voted for at the election or any municipal clerk, deputy municipal clerk or assistant shall serve as a challenger, watcher or alternate. No person shall serve as a challenger or watcher unless that person is a qualified elector of the municipality. E. Upon presentation of their official identification badges to the precinct board, challengers, watchers and alternates shall be permitted to be present at the polling place from the time the precinct board convenes at the polling place until the completion of the counting and tallying of the ballots after the polls close. F. Challengers, watchers and alternates shall wear their official identification badges at all times while they are present in the polling place. They shall not wear any other form of identification or any pins or other identification associated with any candidate, group of candidates or any question presented at the election. G. Challengers, watchers and alternates shall not: (1) be permitted to perform any duty of a precinct board member; (2) handle the ballots, signature rosters, absentee voter lists or voting machines; (3) take any part in the tallying or counting of the ballots; or (4) interfere with the orderly conduct of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 82 - election. H. If a challenger, watcher or alternate is wearing [his] an official identification badge, it is a petty misdemeanor to: (1) deny [him] that person the right to be present at the polling place; (2) deny [him] that person the right to examine voting machines as authorized by law; (3) deny a challenger or alternate challenger the right to challenge voters pursuant to Section 3-8-43 NMSA 1978 and inspect the signature rosters; or (4) deny [him] the challenger, watcher or alternate the right to witness the counting and tallying of ballots. I. A challenger or alternate challenger, for the purposes of interposing challenges pursuant to Section 3-8-43 NMSA 1978, shall be permitted to: (1) inspect the voter registration list; (2) inspect the signature rosters or absentee voter lists to determine whether entries are being made in accordance with law; (3) examine each voting machine before the polls are opened to compare the number on the metal seal and the numbers on the counters with the numbers on the key envelope, to see that all ballot labels are in their proper underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 83 - places and to see that the voting machine is ready for voting at the opening of the polls; (4) make written memoranda of any action or omission on the part of any member of the precinct board and preserve such memoranda for future use; and (5) witness the counting and tallying of the ballots. J. A watcher or alternate watcher shall be permitted to: (1) observe the election to assure that it is conducted in accordance with law; (2) examine any voting machine used at the polling place in the same manner that challengers may examine voting machines; (3) make written memoranda of any action or omission on the part of any member of the precinct board and preserve such memoranda for future use; and (4) witness the counting and tallying of ballots. K. The governing body of a municipality may, at its discretion, appoint one qualified elector for each polling place to serve as an observer of the election. The governing body shall make such appointment not later than 3:00 p.m. on the day before the election and shall notify the municipal clerk of such appointment. The municipal clerk shall issue underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 84 - identification badges to all observers. An observer shall have no powers other than to observe the conduct of the election and observe the counting and tallying and report to the governing body." Section 75. Section 3-9-1 NMSA 1978 (being Laws 1973, Chapter 375, Section 2, as amended) is amended to read: "3-9-1. DEFINITIONS.--As used in Chapter 3, Article 9 NMSA 1978: A. "absent uniformed services voter" means: (1) a member of a uniformed service on active duty who, by reason of such active duty, is absent from the place of residence where the member is otherwise qualified to vote; (2) a member of the merchant marine who, by reason of service in the merchant marine, is absent from the place of residence where the member is otherwise qualified to vote; or (3) a spouse, domestic partner or dependent of a member described in Paragraph (1) or (2) of this subsection who, by reason of the active duty or service of the member, is absent from the place of residence where the spouse, domestic partner or dependent is otherwise qualified to vote; B. "absentee voting" means the casting of a vote by a qualified elector for any candidate or question prior to election day; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 85 - C. "early voter" means a voter who votes in person before election day, and not by mail; D. "election" means a regular or special municipal election; E. "federal qualified elector" means: (1) an absent uniformed services voter; or (2) an absent uniformed services voter who, by reason of active duty or service, is absent from the United States on the date of the election involved; F. "immediate family" means a person's spouse or domestic partner, children, parents, brothers and sisters; G. "member of the merchant marine" means an individual other than a member of a uniformed service or an individual employed, enrolled or maintained on the great lakes or the inland waterways who: (1) is employed as an officer or crew member of a vessel documented under the laws of the United States, a vessel owned by the United States or a vessel of a foreign-flag registry under charter to or control of the United States; or (2) is enrolled with the United States for employment or training for employment or is maintained by the United States for emergency relief service as an officer or crew member of a vessel described in Paragraph (1) of this subsection; H. "overseas voter" means: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 86 - (1) an absent uniformed services voter who, by reason of active duty or service, is absent from the United States on the date of the election involved; (2) a person who resides outside the United States and is qualified to vote in the last place in which the person was domiciled before leaving the United States; or (3) a person who resides outside the United States and, but for such residence, would be qualified to vote in the last place in which the person was domiciled before leaving the United States; I. "uniformed services" means the army, navy, air force, marine corps and coast guard and the commissioned corps of the national oceanic and atmospheric administration; and J. "voter" means a qualified elector of the municipality." Section 76. Section 3-21-1 NMSA 1978 (being Laws 1965, Chapter 300, Section 14-20-1, as amended by Laws 2007, Chapter 46, Section 3 and by Laws 2007, Chapter 270, Section 1) is amended to read: "3-21-1. ZONING--AUTHORITY OF COUNTY OR MUNICIPALITY.-- A. For the purpose of promoting health, safety, morals or the general welfare, a county or municipality is a zoning authority and may regulate and restrict within its jurisdiction the: (1) height, number of stories and size of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 87 - buildings and other structures; (2) percentage of a lot that may be occupied; (3) size of yards, courts and other open space; (4) density of population; and (5) location and use of buildings, structures and land for trade, industry, residence or other purposes. B. The county or municipal zoning authority may: (1) divide the territory under its jurisdiction into districts of such number, shape, area and form as is necessary to carry out the purposes of Sections 3-21-1 through 3-21-14 NMSA 1978; and (2) regulate or restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land in each district. All such regulations shall be uniform for each class or kind of buildings within each district, but regulation in one district may differ from regulation in another district. C. All state-licensed or state-operated community residences for persons with a mental or developmental disability [and serving] that serve ten or fewer persons may be considered a residential use of property for purposes of zoning and may be permitted use in all districts in which residential uses are permitted generally, including particularly residential zones for single-family dwellings. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 88 - D. A board of county commissioners of the county in which the greatest amount of the territory of the petitioning village, community, neighborhood or district lies may declare by ordinance that a village, community, neighborhood or district is a "traditional historic community" upon petition by twenty-five percent or more of the registered qualified electors of the territory within the village, community, neighborhood or district requesting the designation. The number of registered qualified electors shall be based on county records as of the date of the last general election. E. Any village, community, neighborhood or district that is declared a traditional historic community shall be excluded from the extraterritorial zone and extraterritorial zoning authority of any municipality whose extraterritorial zoning authority extends to include all or a portion of the traditional historic community and shall be subject to the zoning jurisdiction of the county in which the greatest portion of the traditional historic community lies. F. Zoning authorities, including zoning authorities of home rule municipalities, shall accommodate multigenerational housing by creating a mechanism to allow up to two kitchens within a single-family zoning district, such as conditional use permits. G. For the purpose of this section, "multigenerational" means any number of persons related by underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 89 - blood, common ancestry, marriage, domestic partnership, guardianship or adoption." Section 77. Section 5-11-2 NMSA 1978 (being Laws 2001, Chapter 305, Section 2, as amended) is amended to read: "5-11-2. DEFINITIONS.--As used in the Public Improvement District Act: A. "clerk" means the clerk of the municipality or county, or any person appointed by the district board to be the district clerk pursuant to Section 5-11-6 NMSA 1978; B. "county" means a county that forms a public improvement district pursuant to the Public Improvement District Act in an unincorporated area or in an incorporated area with the municipality's consent; C. "debt service" means the principal of, interest on and premium, if any, on the bonds, when due, whether at maturity or prior redemption; the fees and costs of registrars, trustees, paying agents or other agents necessary to handle the bonds; and the costs of credit enhancement or liquidity support; D. "development agreement" means an agreement between a property owner or developer and the county, municipality or district, concerning the improvement of specific property within the district, which agreement may be used to establish obligations of the owner or developer, the county or municipality or the district concerning the zoning, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 90 - subdivision, improvement, impact fees, financial responsibilities and other matters relating to the development, improvement and use of real property within a district; E. "district" means a public improvement district formed pursuant to the Public Improvement District Act by a municipality or by a county in an unincorporated area or in an incorporated area with the municipality's consent; F. "district board" means the board of directors of the district, which shall be composed of members of the governing body, ex officio, or, at the option of the governing body, five directors appointed by the governing body of the municipality or county in which the district is located, until replaced by elected directors, which shall occur not later than six years after the date on which the resolution establishing the district is enacted, as provided in Section 5-11-9 NMSA 1978; G. "election" means an election held in compliance with the provisions of Sections 5-11-6 and 5-11-7 NMSA 1978; H. "enhanced services" means public services provided by a municipality or county within the district at a higher level or to a greater degree than otherwise available to the land located in the district from the municipality or county, including such services as public safety, fire protection, street or sidewalk cleaning or landscape maintenance in public areas. "Enhanced services" does not underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 91 - include the basic operation and maintenance related to infrastructure improvements financed by the district pursuant to the Public Improvement District Act; I. "general plan" means the general plan described in Section 5-11-3 NMSA 1978, as the plan may be amended from time to time; J. "governing body" means the body or board that by law is constituted as the governing body of the municipality or county in which the public improvement district is located; K. "municipality" means an incorporated city, village or town; L. "owner" means: (1) the person who is listed as the owner of real property in the district on the current property tax assessment roll in effect at the time that the action, proceeding, hearing or election has begun. For purposes of voting in elections held pursuant to the Public Improvement District Act, when the owner of record title is a married person, only one spouse in whose name title is held may vote at such election and when the owner of record title is in a domestic partnership, only one domestic partner in whose name title is held may vote at such election. Where record title is held in more than one name, each owner may vote the number of fractions of acres represented by the owner's legal interest or proportionate share of and in the lands within the district; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 92 - (2) the administrator or executor of an estate holding record title to land within the district; (3) the guardian of a minor or incompetent person holding record title to land within the district, appointed and qualified under the laws of the state; (4) an officer of a corporation holding record title to land within the district, which officer has been authorized by resolution of the corporation's board of directors to act with respect to such land; (5) the general partner of a partnership holding record title to land within the district; (6) the trustee of a trust holding record title to land within the district; or (7) the manager or member of a limited liability company holding record title to land within the district who has been authorized to represent the company; M. "public infrastructure improvements" means all improvements listed in this subsection and includes both on-site improvements and off-site improvements that directly or indirectly benefit the district. Such improvements include necessary or incidental work, whether newly constructed, renovated or existing, and all necessary or desirable appurtenances. "Public infrastructure improvements" includes: (1) sanitary sewage systems, including collection, transport, storage, treatment, dispersal, effluent underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 93 - use and discharge; (2) drainage and flood control systems, including collection, transport, diversion, storage, detention, retention, dispersal, use and discharge; (3) water systems for domestic, commercial, office, hotel or motel, industrial, irrigation, municipal or fire protection purposes, including production, collection, storage, treatment, transport, delivery, connection and dispersal; (4) highways, streets, roadways, bridges, crossing structures and parking facilities, including all areas for vehicular use for travel, ingress, egress and parking; (5) trails and areas for pedestrian, equestrian, bicycle or other nonmotor vehicle use for travel, ingress, egress and parking; (6) pedestrian malls, parks, recreational facilities and open space areas for the use of members of the public for entertainment, assembly and recreation; (7) landscaping, including earthworks, structures, lakes and other water features, plants, trees and related water delivery systems; (8) public buildings, public safety facilities and fire protection and police facilities; (9) electrical generation, transmission and distribution facilities; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 94 - (10) natural gas distribution facilities; (11) lighting systems; (12) cable or other telecommunications lines and related equipment; (13) traffic control systems and devices, including signals, controls, markings and signage; (14) school sites and facilities with the consent of the governing board of the public school district for which the site or facility is to be acquired, constructed or renovated; (15) library and other public educational or cultural facilities; (16) equipment, vehicles, furnishings and other personalty related to the items listed in this subsection; and (17) inspection, construction management and program management costs; N. "public infrastructure purpose" means: (1) planning, design, engineering, construction, acquisition or installation of public infrastructure, including the costs of applications, impact fees and other fees, permits and approvals related to the construction, acquisition or installation of such infrastructure; (2) acquiring, converting, renovating or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 95 - improving existing facilities for public infrastructure, including facilities owned, leased or installed by an owner; (3) acquiring interests in real property or water rights for public infrastructure, including interests of an owner; (4) establishing, maintaining and replenishing reserves in order to secure payment of debt service on bonds; (5) funding and paying from bond proceeds interest accruing on bonds for a period not to exceed three years from their date of issuance; (6) funding and paying from bond proceeds fiscal, financial and legal consultant fees, trustee fees, discount fees, district formation and election costs and all costs of issuance of bonds issued pursuant to the Public Improvement District Act, including, but not limited to, fees and costs for bond counsel, financial advisors, consultants and underwriters, costs of obtaining credit ratings, bond insurance premiums, fees for letters of credit and other credit enhancement costs and printing costs; (7) providing for the timely payment of debt service on bonds or other indebtedness of the district; (8) refinancing any outstanding bonds with new bonds, including through the formation of a new public improvement district; and (9) incurring expenses of the district underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 96 - incident to and reasonably necessary to carry out the purposes specified in this subsection; O. "resident qualified elector" means a person who resides within the boundaries of a district or proposed district and who is qualified to vote in the general elections held in the state pursuant to Section 1-1-4 NMSA 1978; P. "special levy" means a levy imposed against real property within a district that may be apportioned according to direct or indirect benefits conferred upon affected real property, as well as acreage, front footage, the cost of providing public infrastructure for affected real property, or other reasonable method, as determined by the governing body or district board, as applicable; and Q. "treasurer" means the treasurer of the governing body or the person appointed by the district board as the district treasurer pursuant to Section 5-11-6 NMSA 1978." Section 78. A new Section 7-2-2.1 NMSA 1978 is enacted to read: "7-2-2.1. [NEW MATERIAL] DOMESTIC PARTNER--FILING STATUS-- DISCLOSURE.-- A. In filing a state income tax return, a domestic partner shall use the same filing status as is used on a federal income tax return filed in the same tax year or would have been used if a federal income tax return had been filed in the same year. A domestic partner's income and earnings shall underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 97 - not be treated as community property for state income tax purposes. B. The department shall require a domestic partner to provide, on a state income tax form, the name and social security number of the other domestic partner." Section 79. Section 7-2-5.5 NMSA 1978 (being Laws 1995, Chapter 42, Section 1) is amended to read: "7-2-5.5. EXEMPTION--EARNINGS BY INDIANS, THEIR INDIAN SPOUSES OR DOMESTIC PARTNERS AND INDIAN DEPENDENTS ON INDIAN LANDS.--Income earned by a member of a New Mexico federally recognized Indian nation, tribe, band or pueblo, [his] the member's spouse, domestic partner or dependent, who is a member of a New Mexico federally recognized Indian nation, tribe, band or pueblo, is exempt from state income tax if the income is earned from work performed within and the member, spouse, domestic partner or dependent lives within the boundaries of the Indian member's or the spouse's or domestic partner's reservation or pueblo grant or within the boundaries of lands held in trust by the United States for the benefit of the member or spouse or domestic partner or [his] the member's or spouse's or domestic partner's nation, tribe, band or pueblo, subject to restriction against alienation imposed by the United States." Section 80. Section 7-2H-1 NMSA 1978 (being Laws 2008, Chapter 89, Section 1, as amended) is amended to read: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 98 - "7-2H-1. LEGISLATIVE FINDINGS.-- A. Native Americans have had a long history of serving their country through active duty in the armed forces of the United States during periods of both war and peace and have made great sacrifices in serving their country through active duty in the military during periods of war and peace. B. Native American veterans domiciled within the boundaries of their tribal lands or their spouse's or domestic partner's tribal lands during their periods of active military service may have been exempt from paying state personal income taxes on their military income, but may have had state personal income taxes withheld from their military income. C. Native American veterans now are barred by the state statute of limitations from claiming refunds of state personal income taxes that may have been withheld from their military income when they were domiciled within the boundaries of their tribal lands or their spouse's or domestic partner's tribal lands during the period of their active military duty, and even if not barred by the statute of limitations, the passage of time extending to decades will make it difficult for many Native American veterans to meet strict standards of proof that they are entitled to a refund of withheld state personal income taxes. D. It is incumbent upon the state to ensure that it was not unjustly enriched by the withholding of state personal underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 99 - income taxes from Native American veterans who were domiciled within the boundaries of their tribal lands or their spouse's or domestic partner's tribal lands during the period of their active military duty, and the state should implement a feasible means of refunding to Native American veterans any state personal income taxes that were withheld from military income while they were domiciled within the boundaries of their tribal lands or their spouse's or domestic partner's tribal lands during the period of their active military duty." Section 81. Section 7-2H-3 NMSA 1978 (being Laws 2008, Chapter 89, Section 3, as amended) is amended to read: "7-2H-3. NATIVE AMERICAN VETERANS' INCOME TAX SETTLEMENT FUND--CREATED--PURPOSE--APPROPRIATIONS.-- A. The "Native American veterans' income tax settlement fund" is created as a nonreverting fund in the state treasury and shall be administered by the taxation and revenue department. The fund shall consist of money that is appropriated or donated or that otherwise accrues to the fund. B. The taxation and revenue department shall establish procedures and adopt rules as required to administer the fund and to make settlement payments from the fund as approved by the secretary of taxation and revenue. C. Money in the fund is appropriated to the taxation and revenue department to make settlement payments to Native American veterans who were domiciled within the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 100 - boundaries of their tribal lands or their spouse's or domestic partner's tribal lands during the period of their active military duty and had state personal income taxes withheld from their military income, or to their heirs pursuant to applicable law. Settlement payments shall include the amount of state personal income taxes withheld from eligible Native American veterans that have not been previously refunded to the veterans and interest on the amount withheld from the date of withholding computed on a daily basis at the rate specified for individuals pursuant to Section 6621 of the Internal Revenue Code of 1986. No settlement payments shall be made for any taxable year for which a refund claim may be timely filed with the taxation and revenue department, or for which an application for settlement is received after December 31, 2012. Money shall be disbursed from the fund only on warrant of the secretary of finance and administration upon vouchers signed by the secretary of taxation and revenue or the secretary's authorized representative. Any unexpended or unencumbered balance remaining in the fund at the end of a fiscal year shall not revert to the general fund. D. Beginning in fiscal year 2010 and in subsequent fiscal years, not more than five percent of the fund is appropriated from the fund to the taxation and revenue department for expenditure in the fiscal year in which it is appropriated to administer the fund. Any unexpended or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 101 - unencumbered balance remaining at the end of any fiscal year shall revert to the fund. E. Beginning in fiscal year 2010 and in subsequent fiscal years, not more than five percent of the fund is appropriated from the fund to the veterans' services department for expenditure in the fiscal year in which it is appropriated to assist in outreach and public relations and in determining eligibility for settlement payments. Any unexpended or unencumbered balance remaining at the end of any fiscal year shall revert to the fund." Section 82. Section 7-2H-4 NMSA 1978 (being Laws 2008, Chapter 89, Section 4, as amended) is amended to read: "7-2H-4. DUTIES OF THE SECRETARY.-- A. The secretary of veterans' services shall conduct a study in cooperation with the taxation and revenue department to determine whether Native American veterans who were domiciled within the boundaries of their tribal lands or their spouse's or domestic partner's tribal lands during the period of their active military duty had state personal income taxes withheld from their military income and if so, to determine the amount of such state personal income taxes withheld and the number and identity of Native American veterans or their survivors affected by the withholding of such state personal income taxes. B. The secretary of taxation and revenue and the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 102 - secretary of veterans' services shall promulgate rules for a state program to compensate Native American veterans or their survivors for state personal income taxes withheld from military income while on active military duty and domiciled within the boundaries of the veteran's or the veteran's spouse's or domestic partner's tribal lands. C. The secretary of taxation and revenue shall report to the appropriate interim legislative committee no later than October 1 of each year regarding estimates of the amount of state personal income taxes withheld from the military income of Native American veterans domiciled on their respective tribal lands, the number of Native American veterans or their survivors affected by such withholding of state personal income taxes, total expenditures from the fund for the previous fiscal year and the anticipated appropriations to the fund needed to pay for settlements to be entered into for the next fiscal year." Section 83. Section 7-3-3 NMSA 1978 (being Laws 1961, Chapter 243, Section 3, as amended) is amended to read: "7-3-3. TAX WITHHELD AT SOURCE.-- A. Every employer who deducts and withholds a portion of an employee's wages for payment of income tax under the provisions of the Internal Revenue Code shall deduct and withhold an amount for each payroll period computed from a state withholding tax table furnished by the department; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 103 - provided: (1) if the employee instructs the employer to withhold a greater amount, the employer shall deduct and withhold the greater amount; (2) if the employee is not a resident of New Mexico and is to perform services in New Mexico for fifteen or fewer days cumulatively during the calendar year, the employer is not required to deduct and withhold an amount from that employee's wages; and (3) if the aggregate monthly amount withheld under this section would be less than one dollar ($1.00) for an employee, the employer shall not be required to deduct and withhold wages in regard to that employee. B. The department shall devise and furnish a state withholding tax table based on statutes made and provided to employers required to withhold amounts under this section. This table shall be devised to provide for a yearly aggregate withholding that will approximate the state income tax liability of average taxpayers in each exemption category. C. If an individual requests in writing that the payor deduct and withhold an amount from the amount of the pension or annuity due the individual, the payor making payment of a pension or annuity to an individual domiciled in New Mexico shall deduct and withhold the amount requested to be deducted and withheld, provided that the payor is not required underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 104 - to deduct and withhold any amount less than ten dollars ($10.00) per payment. The written request shall include the payee's name, current address, taxpayer identification number and, if applicable, the contract, policy or account number to which the request applies. D. Every person in New Mexico who is required by the provisions of the Internal Revenue Code to deduct and withhold federal tax from payment of winnings that are subject to withholding shall deduct and withhold from such payment a tax in an amount equal to six percent of the winnings, except that an Indian nation, tribe or pueblo or an agency, department, subdivision or instrumentality thereof is not required to deduct or withhold from payments made to members or spouses or domestic partners of members of that Indian nation, tribe or pueblo." Section 84. Section 7-8A-1 NMSA 1978 (being Laws 1997, Chapter 25, Section 1, as amended) is amended to read: "7-8A-1. DEFINITIONS.--As used in the Uniform Unclaimed Property Act (1995): [(1)] A. "administrator" means the taxation and revenue department, the secretary of taxation and revenue or any employee of the department who exercises authority lawfully delegated to [him] the employee by the secretary; [(2)] B. "apparent owner" means a person whose name appears on the records of a holder as the person entitled to underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 105 - property held, issued or owing by the holder; [(3)] C. "business association" means a corporation, joint stock company, investment company, partnership, unincorporated association, joint venture, limited liability company, business trust, trust company, land bank, safe deposit company, safekeeping depository, financial organization, insurance company, mutual fund, utility or other business entity consisting of one or more persons, whether or not for profit; [(4)] D. "domicile" means the state of incorporation of a corporation and the state of the principal place of business of a holder other than a corporation; [(5)] E. "financial organization" means a savings and loan association, building and loan association, savings bank, industrial bank, bank, banking organization or credit union; [(6)] F. "holder" means a person obligated to hold for the account of, or deliver or pay to, the owner property that is subject to the Uniform Unclaimed Property Act (1995); [(7)] G. "insurance company" means an association, corporation or fraternal or mutual benefit organization, whether or not for profit, engaged in the business of providing life endowments, annuities or insurance, including accident, burial, casualty, credit life, contract performance, dental, disability, fidelity, fire, health, hospitalization, illness, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 106 - life, malpractice, marine, mortgage, surety, wage protection and workers' compensation insurance; [(8)] H. "mineral" means gas; oil; coal; other gaseous, liquid and solid hydrocarbons; oil shale; cement material; sand and gravel; road material; building stone; chemical raw material; gemstone; fissionable and nonfissionable ores; colloidal and other clay; steam and other geothermal [resource] resources; or any other substance defined as a mineral by the law of New Mexico; [(9)] I. "mineral proceeds" means amounts payable for the extraction, production or sale of minerals or, upon the abandonment of those payments, all payments that become payable thereafter. The term includes amounts payable: [(i)] (1) for the acquisition and retention of a mineral lease, including bonuses, royalties, compensatory royalties, shut-in royalties, minimum royalties and delay rentals; [(ii)] (2) for the extraction, production or sale of minerals, including net revenue interests, royalties, overriding royalties, extraction payments and production payments; and [(iii)] (3) under an agreement or option, including a joint operating agreement, unit agreement, pooling agreement and farm-out agreement; [(10)] J. "money order" includes an express money underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 107 - order and a personal money order, on which the remitter is the purchaser. [The term] "Money order" does not include a bank money order or any other instrument sold by a financial organization if the seller has obtained the name and address of the payee; [(11)] K. "owner" means a person who has a legal or equitable interest in property subject to the Uniform Unclaimed Property Act (1995) or the person's legal representative. [The term] "Owner" includes a depositor in the case of a deposit, a beneficiary in the case of a trust other than a deposit in trust and a creditor, claimant or payee in the case of other property; [(12)] L. "person" means an individual; business association; financial organization; estate; trust; government; governmental subdivision, agency or instrumentality; or any other legal or commercial entity; [(13)] M. "property" means tangible property described in Section 7-8A-3 NMSA 1978 or a fixed and certain interest in intangible property that is held, issued or owed in the course of a holder's business, or by a government, governmental subdivision, agency or instrumentality, and all income or increments therefrom, but excludes child, spousal, domestic partner or medical support received by the child support enforcement division of the human services department, the New Mexico IV-D agency. [The term] "Property" includes underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 108 - property that is referred to as or evidenced by: [(i)] (1) money, a check, draft, deposit, interest or dividend; [(ii)] (2) credit balance, customer's overpayment, gift certificate, security deposit, refund, credit memorandum, unpaid wage, unused ticket, mineral proceeds or unidentified remittance; [(iii)] (3) stock or other evidence of ownership of an interest in a business association or financial organization; [(iv)] (4) a bond, debenture, note or other evidence of indebtedness; [(v)] (5) money deposited to redeem stocks, bonds, coupons or other securities or to make distributions; [(vi)] (6) an amount due and payable under the terms of an annuity or insurance policy, including policies providing life insurance, property and casualty insurance, workers' compensation insurance or health and disability insurance; and [(vii)] (7) an amount distributable from a trust or custodial fund established under a plan to provide health, welfare, pension, vacation, severance, retirement, death, stock purchase, profit sharing, employee savings, supplemental unemployment insurance or similar benefits; [(14)] N. "record" means information that is underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 109 - inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; [(15)] O. "state" means a state of the United States, the District of Columbia, the commonwealth of Puerto Rico or any territory or insular possession subject to the jurisdiction of the United States; and [(16)] P. "utility" means a person who owns or operates for public use any plant, equipment, real property, franchise or license for the transmission of communications or the production, storage, transmission, sale, delivery or furnishing of electricity, water, steam or gas." Section 85. Section 7-36-21.2 NMSA 1978 (being Laws 2000, Chapter 10, Section 2, as amended) is amended to read: "7-36-21.2. LIMITATION ON INCREASES IN VALUATION OF RESIDENTIAL PROPERTY.-- A. Residential property shall be valued at its current and correct value in accordance with the provisions of the Property Tax Code; provided that for the 2001 and subsequent tax years, the value of a property in any tax year shall not exceed the higher of one hundred three percent of the value in the tax year prior to the tax year in which the property is being valued or one hundred six and one-tenth percent of the value in the tax year two years prior to the tax year in which the property is being valued. This limitation on underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 110 - increases in value does not apply to: (1) a residential property in the first tax year that it is valued for property taxation purposes; (2) any physical improvements made to the property during the year immediately prior to the tax year or omitted in a prior tax year; or (3) valuation of a residential property in any tax year in which: (a) a change of ownership of the property occurred in the year immediately prior to the tax year for which the value of the property for property taxation purposes is being determined; or (b) the use or zoning of the property has changed in the year prior to the tax year. B. If a change of ownership of residential property occurred in the year immediately prior to the tax year for which the value of the property for property taxation purposes is being determined, the value of the property shall be its current and correct value as determined pursuant to the general valuation provisions of the Property Tax Code. C. To assure that the values of residential property for property taxation purposes are at current and correct values in all counties prior to application of the limitation in Subsection A of this section, the department shall determine for the 2000 tax year the sales ratio pursuant underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 111 - to Section 7-36-18 NMSA 1978 or, if a sales ratio cannot be determined pursuant to that section, conduct a sales-ratio analysis using both independent appraisals by the department and sales. If the sales ratio for a county for the 2000 tax year is less than eighty-five, as measured by the median ratio of value for property taxation purposes to sales price or independent appraisal by the department, the county shall not be subject to the limitations of Subsection A of this section and shall conduct a reassessment of residential property in the county so that by the 2003 tax year, the sales ratio is at least eighty-five. After such reassessment, the limitation on increases in valuation in this section shall apply in those counties in the earlier of the 2004 tax year or the first tax year following the tax year that the county has a sales ratio of eighty-five or higher, as measured by the median ratio of value for property taxation purposes to sales value or independent appraisal by the department. Thereafter, the limitation on increases in valuation of residential property for property taxation purposes in this section shall apply to subsequent tax years in all counties. D. The provisions of this section do not apply to residential property for any tax year in which the property is subject to the valuation limitation in Section 7-36-21.3 NMSA 1978. E. As used in this section, "change of ownership" underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 112 - means a transfer to a transferee by a transferor of all or any part of the transferor's legal or equitable ownership interest in residential property except for a transfer: (1) to a trustee for the beneficial use of the spouse or domestic partner of the transferor or the surviving spouse or surviving domestic partner of a deceased transferor; (2) to the spouse or domestic partner of the transferor that takes effect upon the death of the transferor; (3) that creates, transfers or terminates, solely between spouses or domestic partners, any co-owner's interest; (4) to a child of the transferor, who occupies the property as [his] that person's principal residence at the time of transfer; provided that the first subsequent tax year in which that person does not qualify for the head of household exemption on that property, a change of ownership shall be deemed to have occurred; (5) that confirms or corrects a previous transfer made by a document that was recorded in the real estate records of the county in which the real property is located; (6) for the purpose of quieting the title to real property or resolving a disputed location of a real property boundary; (7) to a revocable trust by the transferor underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 113 - with the transferor, the transferor's spouse or domestic partner or a child of the transferor as beneficiary; or (8) from a revocable trust described in Paragraph (7) of this subsection back to the settlor or trustor or to the beneficiaries of the trust." Section 86. Section 7-37-4 NMSA 1978 (being Laws 1973, Chapter 258, Section 37, as amended) is amended to read: "7-37-4. HEAD-OF-FAMILY EXEMPTION.-- A. Up to two thousand dollars ($2,000) of the taxable value of residential property subject to the tax is exempt from the imposition of the tax if the property is owned by the head of a family who is a New Mexico resident or if the property is held in a grantor trust established under Sections 671 through 677 of the Internal Revenue Code, as those sections may be amended or renumbered, by a head of a family who is a New Mexico resident. The exemption allowed shall be in the following amounts for the specified property tax years: (1) for the property tax years 1989 and 1990, the exemption shall be eight hundred dollars ($800); (2) for the property tax years 1991 and 1992, the exemption shall be one thousand four hundred dollars ($1,400); and (3) for the 1993 and subsequent tax years, the exemption shall be two thousand dollars ($2,000). B. The exemption shall be deducted from taxable underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 114 - value of property to determine net taxable value of property. C. The head-of-family exemption shall be applied only if claimed and allowed in accordance with Section 7-38-17 NMSA 1978 and regulations of the department. D. As used in this section, "head of a family" means an individual New Mexico resident who is either: (1) a married person, but only one spouse in a household may qualify as a head of a family; (2) a widow or a widower; (3) a domestic partner, but only one domestic partner in a household may qualify as a head of a family; (4) a domestic partner whose partner is deceased; [(3)] (5) a head of household furnishing more than one-half the cost of support of any related person; [(4)] (6) a single person, but only one person in a household may qualify as a head of a family; or [(5)] (7) a member of a condominium association or like entity who pays property tax through the association. E. A head of a family is entitled to the exemption allowed by this section only once in any tax year and may claim the exemption in only one county in any tax year even though the claimant may own property subject to valuation for property taxation purposes in more than one county." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 115 - Section 87. Section 7-37-5 NMSA 1978 (being Laws 1973, Chapter 258, Section 38, as amended) is amended to read: "7-37-5. VETERAN EXEMPTION.-- A. Up to four thousand dollars ($4,000) of the taxable value of property, including the community or joint property of husband and wife or domestic partners, subject to the tax is exempt from the imposition of the tax if the property is owned by a veteran or the veteran's [unmarried] surviving spouse or surviving domestic partner, who is not married and not in a domestic partnership, if the veteran or surviving spouse or surviving domestic partner is a New Mexico resident or if the property is held in a grantor trust established under Sections 671 through 677 of the Internal Revenue Code of 1986, as those sections may be amended or renumbered, by a veteran or the veteran's [unmarried] surviving spouse or surviving domestic partner, who is not married and not in a domestic partnership, if the veteran or surviving spouse or surviving domestic partner is a New Mexico resident. The exemption shall be deducted from the taxable value of the property to determine the net taxable value of the property. The exemption allowed shall be in the following amounts for the specified tax years: (1) for tax year 2004, the exemption shall be three thousand dollars ($3,000); (2) for tax year 2005, the exemption shall be underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 116 - three thousand five hundred dollars ($3,500); and (3) for tax year 2006 and each subsequent tax year, the exemption shall be four thousand dollars ($4,000). B. The veteran exemption shall be applied only if claimed and allowed in accordance with Section 7-38-17 NMSA 1978 and regulations of the department. For taxpayers who became eligible for a veteran exemption due to the approval of the amendment to Article 8, Section 5 of the constitution of New Mexico in November 2004, a county assessor shall, at the time of determining the net taxable value of the taxpayer's property for the 2005 property tax year, in addition to complying with the provisions of Section 7-38-17 NMSA 1978, determine the net taxable value of the taxpayer's property that would result from the application of the veteran exemption for the 2004 property tax year had the deadline for applying for the veteran exemption in 2004 occurred after the amendment was certified. The veteran exemption for 2004 shall not be credited against the 2005 property value of a taxpayer until the taxpayer has paid in full the taxpayer's property tax liability for the 2004 property tax year. C. As used in this section, "veteran" means an individual who: (1) has been honorably discharged from membership in the armed forces of the United States; and (2) except as provided in this section, served underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 117 - in the armed forces of the United States on active duty continuously for ninety days. D. For the purposes of Subsection C of this section, a person who would otherwise be entitled to status as a veteran except for failure to have served in the armed forces continuously for ninety days is considered to have met that qualification if the person served for less than ninety days and the reason for not having served for ninety days was a discharge brought about by service-connected disablement. E. For the purposes of Subsection C of this section, a person has been "honorably discharged" unless the person received either a dishonorable discharge or a discharge for misconduct. F. For the purposes of this section, a person whose civilian service has been recognized as service in the armed forces of the United States under federal law and who has been issued a discharge certificate by a branch of the armed forces of the United States shall be considered to have served in the armed forces of the United States." Section 88. Section 7-37-5.1 NMSA 1978 (being Laws 2000, Chapter 92, Section 1 and Laws 2000, Chapter 94, Section 1, as amended) is amended to read: "7-37-5.1. DISABLED VETERAN EXEMPTION.-- A. As used in this section: (1) "disabled veteran" means an individual underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 118 - who: (a) has been honorably discharged from membership in the armed forces of the United States or has received a discharge certificate from a branch of the armed forces of the United States for civilian service recognized pursuant to federal law as service in the armed forces of the United States; and (b) has been determined pursuant to federal law to have a one hundred percent permanent and total service-connected disability; and (2) "honorably discharged" means discharged from the armed forces pursuant to a discharge other than a dishonorable or bad conduct discharge. B. The property of a disabled veteran, including joint or community property of the veteran and the veteran's spouse or domestic partner, is exempt from property taxation if it is occupied by the disabled veteran as [his] the veteran's principal place of residence. Property held in a grantor trust established under Sections 671 through 677 of the Internal Revenue Code of 1986, as those sections may be amended or renumbered, by a disabled veteran or the veteran's surviving spouse or surviving domestic partner is also exempt from property taxation if the property otherwise meets the requirements for exemption in this subsection or Subsection C of this section. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 119 - C. The property of the surviving spouse or surviving domestic partner of a disabled veteran is exempt from property taxation if: (1) the surviving spouse or surviving domestic partner and the disabled veteran were married or in a domestic partnership at the time of the disabled veteran's death; and (2) the surviving spouse or surviving domestic partner continues to occupy the property continuously after the disabled veteran's death as the spouse's or domestic partner's principal place of residence. D. The exemption provided by this section may be referred to as the "disabled veteran exemption". E. The disabled veteran exemption shall be applied only if claimed and allowed in accordance with Section 7-38-17 NMSA 1978 and the rules of the department. F. The veterans' services department shall assist the department and the county assessors in determining which veterans qualify for the disabled veteran exemption." Section 89. Section 7-38-12.1 NMSA 1978 (being Laws 2003, Chapter 118, Section 2, as amended) is amended to read: "7-38-12.1. RESIDENTIAL PROPERTY TRANSFERS--AFFIDAVIT TO BE FILED WITH ASSESSOR.-- A. After January 1, 2004, a transferor or the transferor's authorized agent or a transferee or the transferee's authorized agent presenting for recording with a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 120 - county clerk a deed, real estate contract or memorandum of real estate contract transferring an interest in real property classified as residential property for property taxation purposes shall also file with the county assessor within thirty days of the date of filing with the county clerk an affidavit signed and completed in accordance with the provisions of Subsection B of this section. B. The affidavit required for submission shall be in a form approved by the department and signed by the transferors or their authorized agents or the transferees or their authorized agents of any interest in residential real property transferred by deed or real estate contract. The affidavit shall contain only the following information to be used only for analytical and statistical purposes in the application of appraisal methods: (1) the complete names of all transferors and transferees; (2) the current mailing addresses of all transferors and transferees; (3) the legal description of the real property interest transferred as it appears in the document of transfer; (4) the full consideration, including money or any other thing of value, paid or exchanged for the transfer and the terms of the sale, including any amount of seller incentives; and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 121 - (5) the value and a description of personal property that is included in the sale price. C. Upon receipt of the affidavit required by Subsection A of this section, the county assessor shall place the date of receipt on the original affidavit and on a copy of the affidavit. The county assessor shall retain the original affidavit as a confidential record and as proof of compliance and shall return the copy marked with the date of receipt to the person presenting the affidavit. The assessor shall index the affidavits in a manner that permits cross-referencing to other records in the assessor's office pertaining to the specific property described in the affidavit. The affidavit and its contents are not part of the valuation record of the assessor. D. The affidavit required by Subsection A of this section shall not be required for: (1) a deed transferring nonresidential property; (2) a deed that results from the payment in full or forfeiture by a transferee under a recorded real estate contract or recorded memorandum of real estate contract; (3) a lease of or easement on real property, regardless of the length of term; (4) a deed, patent or contract for sale or transfer of real property in which an agency or representative underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 122 - of the United States or New Mexico or any political subdivision of the state is the named grantor or grantee and authorized transferor or transferee; (5) a quitclaim deed to quiet title or clear boundary disputes; (6) a conveyance of real property executed pursuant to court order; (7) a deed to an unpatented mining claim; (8) an instrument solely to provide or release security for a debt or obligation; (9) an instrument that confirms or corrects a deed previously recorded; (10) an instrument between husband and wife, domestic partners or parent and child with only nominal actual consideration therefor; (11) an instrument arising out of a sale for delinquent taxes or assessments; (12) an instrument accomplishing a court- ordered partition; (13) an instrument arising out of a merger or incorporation; (14) an instrument by a subsidiary corporation to its parent corporation for no consideration, nominal consideration or in sole consideration of the cancellation or surrender of the subsidiary's stock; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 123 - (15) an instrument from a person to a trustee or from a trustee to a trust beneficiary with only nominal actual consideration therefor; (16) an instrument to or from an intermediary for the purpose of creating a joint tenancy estate or some other form of ownership; or (17) an instrument delivered to establish a gift or a distribution from an estate of a decedent or trust. E. The affidavit required by Subsection A of this section shall not be construed to be a valuation record pursuant to Section 7-38-19 NMSA 1978. F. Prior to November 1, 2003, the department shall print and distribute to each county assessor affidavit forms for distribution to the public upon request." Section 90. Section 7-38-17 NMSA 1978 (being Laws 1973, Chapter 258, Section 57, as amended) is amended to read: "7-38-17. CLAIMING EXEMPTIONS--REQUIREMENTS--PENALTIES.-- A. Subject to the requirements of Subsection E of this section, head-of-family exemptions, veteran exemptions or disabled veteran exemptions claimed and allowed in a tax year need not be claimed for subsequent tax years if there is no change in eligibility for the exemption nor any change in ownership of the property against which the exemption was claimed. Head-of-family and veteran exemptions allowable under this subsection shall be applied automatically by county underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 124 - assessors in the subsequent tax years. B. Other exemptions of real property specified under Section 7-36-7 NMSA 1978 for nongovernmental entities shall be claimed in order to be allowed. Once such exemptions are claimed and allowed for a tax year, they need not be claimed for subsequent tax years if there is no change in eligibility. Exemptions allowable under this subsection shall be applied automatically by county assessors in subsequent tax years. C. Except as set forth in Subsection H of this section, an exemption required to be claimed under this section shall be applied for no later than thirty days after the mailing of the county assessor's notices of valuation pursuant to Section 7-38-20 NMSA 1978 in order for it to be allowed for that tax year. D. A person who has had an exemption applied to a tax year and subsequently becomes ineligible for the exemption because of a change in the person's status or a change in the ownership of the property against which the exemption was applied shall notify the county assessor of the loss of eligibility for the exemption by the last day of February of the tax year immediately following the year in which loss of eligibility occurs. E. Exemptions may be claimed by filing proof of eligibility for the exemption with the county assessor. The underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 125 - proof shall be in a form prescribed by regulation of the department. Procedures for determining eligibility of claimants for any exemption shall be prescribed by regulation of the department, and these regulations shall include provisions for requiring the veterans' services department to issue certificates of eligibility for veteran exemptions in a form and with the information required by the department. The regulations shall also include verification procedures to assure that veteran exemptions in excess of the amount authorized under Section 7-37-5 NMSA 1978 are not allowed as a result of multiple claiming in more than one county or claiming against more than one property in a single tax year. F. The department shall consult and cooperate with the veterans' services department in the development, adoption and promulgation of regulations under Subsection E of this section. The veterans' services department shall comply with the promulgated regulations. The veterans' services department shall collect a fee of five dollars ($5.00) for the issuance of a duplicate certificate of eligibility to a veteran. G. A person who violates the provisions of this section by intentionally claiming and receiving the benefit of an exemption to which the person is not entitled or who fails to comply with the provisions of Subsection D of this section is guilty of a misdemeanor and shall be punished by a fine of not more than one thousand dollars ($1,000). A county assessor underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 126 - or the assessor's employee who knowingly permits a claimant for an exemption to receive the benefit of an exemption to which the claimant is not entitled is guilty of a misdemeanor and shall be punished by a fine of not more than one thousand dollars ($1,000) and shall also be automatically removed from office or dismissed from employment upon conviction under this subsection. H. A veteran or the veteran's [unmarried] surviving spouse or surviving domestic partner, who is not married and not in a domestic partnership, who became eligible to receive a property tax exemption due to the expansion of the class of eligible veterans resulting from approval by the electorate in November 2004 of an amendment to Article 8, Section 5 of the constitution of New Mexico shall apply at the time the veteran or the veteran's [unmarried] surviving spouse or surviving domestic partner, who is not married and not in a domestic partnership, applies for the 2005 veteran exemption, to the county assessor of the county in which the property of the veteran or the veteran's [unmarried] surviving spouse or surviving domestic partner, who is not married and not in a domestic partnership, is located to have the veteran exemptions for the 2004 and 2005 property tax years applied to the 2005 taxable value of the property. The same form of documentation required for a veteran's property exemption for property tax year 2005 is required to be presented to the county assessor underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 127 - for property tax year 2004." Section 91. Section 9-22-7 NMSA 1978 (being Laws 2004, Chapter 19, Section 7) is amended to read: "9-22-7. DEPARTMENT RESPONSIBILITIES.--The department is responsible for: A. assisting veterans, their surviving spouses or surviving domestic partners and their children in the preparation, presentation and prosecution of claims against the United States arising by reason of military or naval service; B. assisting veterans, their surviving spouses or surviving domestic partners and their children in establishing the rights and the procurement of benefits that have accrued or may accrue to them pursuant to state law; C. disseminating information regarding laws beneficial to veterans, their surviving spouses or surviving domestic partners and their children; and D. cooperating with agencies of the United States that are or may be established for the beneficial interest of veterans, to which end the department may enter into agreements or contracts with the United States for the purpose of protecting or procuring rights or benefits for veterans." Section 92. Section 10-7A-12 NMSA 1978 (being Laws 1991, Chapter 22, Section 1) is amended to read: "10-7A-12. DIVISION OF FUNDS AS COMMUNITY PROPERTY-- NOTICE REQUIREMENT.--A court of competent jurisdiction, solely underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 128 - for the purposes of effecting a division of community property, may provide by appropriate order for a determination and division of a community interest in the deferred compensation plan provided for in the Deferred Compensation Act. Pursuant to such a court order, a deferred compensation administrator shall provide notice, within ten days after a participating public employee files an application for a disbursement from the deferred compensation plan, to a former spouse or former domestic partner who has a court-determined interest in a participating public employee's deferred compensation plan. The notice shall be sent to the last name and address the former spouse or former domestic partner has filed with the administrator of the deferred compensation plan and shall include the schedule for and amounts of the disbursement and the address to which the participating public employee's disbursement will be sent." Section 93. Section 10-7C-2 NMSA 1978 (being Laws 1990, Chapter 6, Section 2) is amended to read: "10-7C-2. PURPOSE OF ACT.--The purpose of the Retiree Health Care Act is to provide comprehensive core group health insurance for persons who have retired from certain public service in New Mexico. The purpose is to provide eligible retirees, their spouses or domestic partners, and dependents and their surviving spouses or surviving domestic partners and dependents with health insurance consisting of a plan or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 129 - optional plans of benefits that can be purchased by funds flowing into the retiree health care fund and by co-payments or out-of-pocket payments of insureds." Section 94. Section 10-7C-4 NMSA 1978 (being Laws 1990, Chapter 6, Section 4, as amended) is amended to read: "10-7C-4. DEFINITIONS.--As used in the Retiree Health Care Act: A. "active employee" means an employee of a public institution or any other public employer participating in either the Educational Retirement Act, the Public Employees Retirement Act, the Judicial Retirement Act, the Magistrate Retirement Act or the Public Employees Retirement Reciprocity Act or an employee of an independent public employer; B. "authority" means the retiree health care authority created pursuant to the Retiree Health Care Act; C. "basic plan of benefits" means only those coverages generally associated with a medical plan of benefits; D. "board" means the board of the retiree health care authority; E. "current retiree" means an eligible retiree who is receiving a disability or normal retirement benefit under the Educational Retirement Act, the Public Employees Retirement Act, the Judicial Retirement Act, the Magistrate Retirement Act, the Public Employees Retirement Reciprocity Act or the retirement program of an independent public employer on or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 130 - before July 1, 1990; F. "eligible dependent" means a person obtaining retiree health care coverage based upon that person's relationship to an eligible retiree as follows: (1) a spouse or domestic partner; (2) an unmarried child under the age of nineteen who is: (a) a natural child; (b) a legally adopted child; (c) a stepchild living in the same household who is primarily dependent on the eligible retiree for maintenance and support; (d) a child for whom the eligible retiree is the legal guardian and who is primarily dependent on the eligible retiree for maintenance and support, as long as evidence of the guardianship is evidenced in a court order or decree; or (e) a foster child living in the same household; (3) a child described in Subparagraphs (a) through (e) of Paragraph (2) of this subsection who is between the ages of nineteen and twenty-five and is a full-time student at an accredited educational institution; provided that "full- time student" shall be a student enrolled in and taking twelve or more semester hours or its equivalent contact hours in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 131 - primary, secondary, undergraduate or vocational school or a student enrolled in and taking nine or more semester hours or its equivalent contact hours in graduate school; (4) a dependent child over nineteen who is wholly dependent on the eligible retiree for maintenance and support and who is incapable of self-sustaining employment by reason of mental retardation or physical handicap; provided that proof of incapacity and dependency shall be provided within thirty-one days after the child reaches the limiting age and at such times thereafter as may be required by the board; (5) a surviving spouse or surviving domestic partner defined as follows: (a) "surviving spouse" or "surviving domestic partner" means the spouse to whom a retiree was married or the domestic partner with whom a retiree had a domestic partnership at the time of the retiree's death; or (b) "surviving spouse" or "surviving domestic partner" means the spouse to whom a deceased vested active employee was married or the domestic partner with whom the deceased vested active employee had a domestic partnership at the time of death; or (6) a surviving dependent child who is the dependent child of a deceased eligible retiree and whose other parent is also deceased; G. "eligible employer" means either: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 132 - (1) a "retirement system employer", which means an institution of higher education, a school district or other entity participating in the public school insurance authority, a state agency, state court, magistrate court, municipality, county or public entity, each of which is affiliated under or covered by the Educational Retirement Act, the Public Employees Retirement Act, the Judicial Retirement Act, the Magistrate Retirement Act or the Public Employees Retirement Reciprocity Act; or (2) an "independent public employer", which means a municipality, county or public entity that is not a retirement system employer; H. "eligible retiree" means: (1) a "nonsalaried eligible participating entity governing authority member", which means a person who is not a retiree and who: (a) has served without salary as a member of the governing authority of an employer eligible to participate in the benefits of the Retiree Health Care Act and is certified to be such by the executive director of the public school insurance authority; (b) has maintained group health insurance coverage through that member's governing authority if such group health insurance coverage was available and offered to the member during the member's service as a member of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 133 - governing authority; and (c) was participating in the group health insurance program under the Retiree Health Care Act prior to July 1, 1993; or (d) notwithstanding the provisions of Subparagraphs (b) and (c) of this paragraph, is eligible under Subparagraph (a) of this paragraph and has applied before August 1, 1993 to the authority to participate in the program; (2) a "salaried eligible participating entity governing authority member", which means a person who is not a retiree and who: (a) has served with salary as a member of the governing authority of an employer eligible to participate in the benefits of the Retiree Health Care Act; (b) has maintained group health insurance through that member's governing authority, if such group health insurance was available and offered to the member during the member's service as a member of the governing authority; and (c) was participating in the group health insurance program under the Retiree Health Care Act prior to July 1, 1993; or (d) notwithstanding the provisions of Subparagraphs (b) and (c) of this paragraph, is eligible under Subparagraph (a) of this paragraph and has applied before underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 134 - August 1, 1993 to the authority to participate in the program; (3) an "eligible participating retiree", which means a person who: (a) falls within the definition of a retiree, has made contributions to the fund for at least five years prior to retirement and whose eligible employer during that period of time made contributions as a participant in the Retiree Health Care Act on the person's behalf, unless that person retires on or before July 1, 1995, in which event the time period required for employee and employer contributions shall become the period of time between July 1, 1990 and the date of retirement, and who is certified to be a retiree by the educational retirement director, the executive secretary of the public employees retirement board or the governing authority of an independent public employer; (b) falls within the definition of a retiree, retired prior to July 1, 1990 and is certified to be a retiree by the educational retirement director, the executive secretary of the public employees retirement association or the governing authority of an independent public employer; but this paragraph does not include a retiree who was an employee of an eligible employer who exercised the option not to be a participating employer pursuant to the Retiree Health Care Act and did not after January 1, 1993 elect to become a participating employer; unless the retiree: 1) retired on or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 135 - before June 30, 1990; and 2) at the time of retirement, did not have a retirement health plan or retirement health insurance coverage available from the retiree's employer; or (c) is a retiree who: 1) was at the time of retirement an employee of an eligible employer who exercised the option not to be a participating employer pursuant to the Retiree Health Care Act, but which eligible employer subsequently elected after January 1, 1993 to become a participating employer; 2) has made contributions to the fund for at least five years prior to retirement and whose eligible employer during that period of time made contributions as a participant in the Retiree Health Care Act on the person's behalf, unless that person retires prior to the eligible employer's election to become a participating employer or less than five years after the date participation begins when the participation date begins before July 1, 2009, in which event the time period required for employee and employer contributions shall become the period of time, if any, between the date participation begins and the date of retirement or when the participation date begins on or after July 1, 2009, in which event the person and employer shall contribute to the fund an amount equal to the full actuarial present value of the accrued benefits as determined by the authority; and 3) is certified to be a retiree by the educational retirement director, the executive director of the public employees underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 136 - retirement board or the governing authority of an independent public employer; (4) a "legislative member", which means a person who is not a retiree and who served as a member of the New Mexico legislature for at least two years, but is no longer a member of the legislature and is certified to be such by the legislative council service; or (5) a "former participating employer governing authority member", which means a person, other than a nonsalaried eligible participating entity governing authority member or a salaried eligible participating entity governing authority member, who is not a retiree and who served as a member of the governing authority of a participating employer for at least four years but is no longer a member of the governing authority and whose length of service is certified by the chief executive officer of the participating employer; I. "fund" means the retiree health care fund; J. "group health insurance" means coverage that includes but is not limited to life insurance, accidental death and dismemberment, hospital care and benefits, surgical care and treatment, medical care and treatment, dental care, eye care, obstetrical benefits, prescribed drugs, medicines and prosthetic devices, medicare supplement, medicare carveout, medicare coordination and other benefits, supplies and services through the vehicles of indemnity coverages, health maintenance underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 137 - organizations, preferred provider organizations and other health care delivery systems as provided by the Retiree Health Care Act and other coverages considered by the board to be advisable; K. "ineligible dependents" includes: (1) those dependents created by common law relationships; (2) dependents while in active military service; (3) parents, aunts, uncles, brothers, sisters, grandchildren and other family members left in the care of an eligible retiree without evidence of legal guardianship; and (4) anyone not specifically referred to as an eligible dependent pursuant to the rules adopted by the board; L. "participating employee" means an employee of a participating employer, which employee has not been expelled from participation in the Retiree Health Care Act pursuant to Section 10-7C-10 NMSA 1978; M. "participating employer" means an eligible employer who has satisfied the conditions for participating in the benefits of the Retiree Health Care Act, including the requirements of Subsection M of Section 10-7C-7 NMSA 1978 and Subsection D or E of Section 10-7C-9 NMSA 1978, as applicable; N. "public entity" means a flood control authority, economic development district, council of governments, regional underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 138 - housing authority, conservancy district or other special district or special purpose government; and O. "retiree" means a person who: (1) is receiving: (a) a disability or normal retirement benefit or survivor's benefit pursuant to the Educational Retirement Act; (b) a disability or normal retirement benefit or survivor's benefit pursuant to the Public Employees Retirement Act, the Judicial Retirement Act, the Magistrate Retirement Act or the Public Employees Retirement Reciprocity Act; or (c) a disability or normal retirement benefit or survivor's benefit pursuant to the retirement program of an independent public employer to which that employer has made periodic contributions; or (2) is not receiving a survivor's benefit but is the eligible dependent of a person who received a disability or normal retirement benefit pursuant to the Educational Retirement Act, the Public Employees Retirement Act, the Judicial Retirement Act, the Magistrate Retirement Act or the Public Employees Retirement Reciprocity Act." Section 95. Section 10-11-14.5 NMSA 1978 (being Laws 1993, Chapter 160, Section 4, as amended) is amended to read: "10-11-14.5. DEATH BEFORE RETIREMENT--SURVIVOR underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 139 - PENSIONS.-- A. A survivor pension may be paid to certain persons related to or designated by a member who dies before normal or disability retirement if a written application for the pension, in the form prescribed by the association, is filed with the association by the potential survivor beneficiary or beneficiaries within one year of the death of the member. Applications may be filed on behalf of the potential survivor beneficiary or beneficiaries or by a person legally authorized to represent them. B. If there is no designated survivor beneficiary and the retirement board finds the death to have been the natural and proximate result of causes arising solely and exclusively out of and in the course of the member's performance of duty with an affiliated public employer, a survivor pension shall be payable to the eligible surviving spouse or surviving domestic partner. The amount of the survivor pension shall be the greater of: (1) the amount as calculated under the coverage plan applicable to the deceased member at the time of death as though the deceased member had retired the day preceding death under form of payment B using the actual amount of service credit attributable to the deceased member at the time of death; or (2) fifty percent of the deceased member's underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 140 - final average salary. C. A survivor pension shall also be payable to eligible surviving children if there is no designated survivor beneficiary and the retirement board finds the death to have been the natural and proximate result of causes arising solely and exclusively out of and in the course of the member's performance of duty with an affiliated public employer. The total amount of survivor pension payable for all eligible surviving children shall be either: (1) fifty percent of the deceased member's final average salary if an eligible surviving spouse or surviving domestic partner is not paid a pension; or (2) twenty-five percent of the deceased member's final average salary if an eligible surviving spouse or surviving domestic partner is paid a pension. The total amount of survivor pension shall be divided equally among all eligible surviving children. If there is only one eligible child, the amount of pension shall be twenty- five percent of the deceased member's final average salary. D. If the member had five or more years of service credit, but the retirement board did not find the death to have been the natural and proximate result of causes arising solely and exclusively out of and in the course of the member's performance of duty with an affiliated public employer and there is no designated survivor beneficiary, a survivor pension underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 141 - shall be payable to the eligible surviving spouse or surviving domestic partner. The amount of the survivor pension shall be the greater of: (1) the amount as calculated under the coverage plan applicable to the deceased member at the time of death as though the deceased member had retired the day preceding death under form of payment B using the total amount of actual service credit attributable to the deceased member at the time of death; or (2) thirty percent of the deceased member's final average salary. E. If the member had five or more years of service credit, but the retirement board did not find the death to have been the natural and proximate result of causes arising solely and exclusively out of and in the course of the member's performance of duty with an affiliated public employer and there is no designated survivor beneficiary, and if there is no eligible surviving spouse or surviving domestic partner at the time of death, a survivor pension shall be payable to and divided equally among all eligible surviving children, if any. The total amount of survivor pension payable for all eligible surviving children shall be the greater of: (1) the amount as calculated under the coverage plan applicable to the deceased member at the time of death as though the deceased member had retired the day underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 142 - preceding death under form of payment B with the oldest eligible surviving child as the survivor beneficiary using the total amount of actual service credit attributable to the deceased member at the time of death; or (2) thirty percent of the deceased member's final average salary. F. An eligible surviving spouse or surviving domestic partner is the spouse [to] or domestic partner with whom the deceased member was [married] in a marriage or a domestic partnership at the time of death. An eligible surviving child is a child under the age of eighteen years, who is not married or in a domestic partnership and who is [an unmarried] a natural or adopted child of the deceased member. G. An eligible surviving spouse's or surviving domestic partner's pension shall terminate upon death. An eligible surviving child's pension shall terminate upon death, [or] entering into a marriage or a domestic partnership or reaching age eighteen years, whichever comes first. H. If there is no designated survivor beneficiary and there is no eligible surviving child, the eligible surviving spouse or surviving domestic partner may elect to be refunded the deceased member's accumulated member contributions instead of receiving a survivor pension. I. A member may designate a survivor beneficiary to receive a pre-retirement survivor pension, subject to the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 143 - following conditions: (1) a written designation, in the form prescribed by the association, is filed by the member with the association; (2) if the member is married or in a domestic partnership at the time of designation, the designation shall only be made with the consent of the member's spouse or domestic partner, in the form prescribed by the association; (3) if the member is married or in a domestic partnership subsequent to the time of designation, any prior designations shall automatically be revoked upon the date of the marriage or entry into a domestic partnership; (4) if the member is divorced or the member's domestic partnership is dissolved subsequent to the time of designation, any prior designation of the former spouse or former domestic partner as survivor beneficiary shall automatically be revoked upon the date of divorce or dissolution; and (5) a designation of survivor beneficiary may be changed, with the member's spouse's or domestic partner's consent if the member is married or in a domestic partnership, by the member at any time prior to the member's death. J. If there is a designated survivor beneficiary and the retirement board finds the death to have been the natural and proximate result of causes arising solely and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 144 - exclusively out of and in the course of the member's performance of duty with an affiliated public employer, a survivor pension shall be payable to the designated survivor beneficiary. The amount of the survivor pension shall be the greater of: (1) the amount as calculated under the coverage plan applicable to the deceased member at the time of death as though the deceased member had retired the day preceding death under form of payment B using the actual amount of service credit attributable to the member at the time of death; or (2) fifty percent of the deceased member's final average salary. K. If there is a designated survivor beneficiary, if the member had five or more years of service credit and if the retirement board did not find the death to have been the natural and proximate result of causes arising solely and exclusively out of and in the course of the member's performance of duty with an affiliated public employer, a survivor pension shall be payable to the designated survivor beneficiary. The amount of the survivor pension shall be the greater of: (1) the amount as calculated under the coverage plan applicable to the deceased member at the time of death as though the deceased member had retired the day underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 145 - preceding death under form of payment B using the actual amount of service credit attributable to the member at the time of death; or (2) thirty percent of the deceased member's final average salary. L. If all pension payments permanently terminate before there is paid an aggregate amount equal to the deceased member's accumulated member contributions at time of death, the difference between the amount of accumulated member contributions and the aggregate amount of pension paid shall be paid to the deceased member's refund beneficiary. If no refund beneficiary survives the survivor beneficiary, the difference shall be paid to the estate of the deceased member." Section 96. Section 10-11-116 NMSA 1978 (being Laws 1987, Chapter 253, Section 116, as amended) is amended to read: "10-11-116. ELECTION OF FORM OF PAYMENT OF A PENSION.-- A. Except as otherwise provided in Section 10-11-136 NMSA 1978, a member may elect to have pension payments made under any one of the forms of payment provided in Section 10-11-117 NMSA 1978. The election of form of payment and naming of survivor pension beneficiary shall be made on a form furnished by and filed with the association prior to the date the first pension payment is made. An election of form of payment may not be changed after the date the first pension payment is made. If the member is married or in a domestic underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 146 - partnership, the association shall obtain the consent of the member's spouse or domestic partner to the election of the form of payment and any designation of survivor pension beneficiary before the election or designation is effective. Except as provided in Subsection C of this section, a named survivor pension beneficiary may not be changed after the date the first pension payment is made if form of payment B or C is elected. Except as otherwise provided in Section 10-11-136 NMSA 1978, payment shall be made: (1) under form of payment A if the member is not married or in a domestic partnership at the time of retirement and if there is not a timely election of another form of payment; or (2) under form of payment C with the member's spouse or domestic partner as survivor pension beneficiary if the member is married or in a domestic partnership at the time of retirement and there is not a timely election of another form of payment. B. The amount of pension under forms of payment B, C and D shall have the same actuarial present value, computed as of the effective date of the pension, as the amount of pension under form of payment A. C. A retired member who is being paid a pension under form of payment B or C with the member's spouse or domestic partner as the designated survivor pension beneficiary underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 147 - may, upon becoming divorced from the named spouse or upon dissolution of the domestic partnership and subject to an order of a court as provided for in Section 10-11-136 NMSA 1978, elect to have future payments made under form of payment A." Section 97. Section 10-11-124 NMSA 1978 (being Laws 1987, Chapter 253, Section 124, as amended) is amended to read: "10-11-124. MEMBER CONTRIBUTION FUND.-- A. The member contribution fund is the accounting fund in which shall be accumulated contributions of members and from which shall be made refunds and transfers of accumulated member contributions as provided in the Public Employees Retirement Act. Each affiliated public employer shall cause the member contributions specified by the coverage plan applicable to each of that affiliated public employer's members to be deducted from the salary of each member. Each affiliated public employer shall remit the deducted member contributions to the association in accordance with the procedures and schedules established by the association. The association may assess an interest charge and a penalty charge on any remittance not made by its due date. Each member shall be deemed to consent and agree to the deductions made and provided for in this section by continuing employment with the affiliated public employer. Contributions by members shall be credited to the members' individual accounts in the member contribution fund. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 148 - B. A member's accumulated contributions shall be transferred to the retirement reserve fund if a pension becomes payable upon the retirement or death of the member. If a disability retirement pension is terminated for a reason other than the death of the disability retired member before an amount equal to the disability retired member's accumulated member contributions has been paid, the unexpended balance of the accumulated member contributions shall be transferred from the retirement reserve fund to the former disability retired member's individual account in the member contribution fund. C. If a member terminates affiliated public employment or is on leave of absence from an affiliated public employer as a consequence of the entry into active duty with the armed forces of the United States, the member may, with the written consent of the member's spouse or domestic partner, if any, withdraw the member's accumulated member contributions, upon making written request in a form prescribed by the association. Upon written request of the member in the form prescribed by the association, a refund of member contributions may be made by a trustee-to-trustee transfer of the contributions from the member contribution fund directly to another qualified plan as allowed by the Internal Revenue Code. Withdrawal of member contributions shall result in forfeiture of the service credit accrued for the period during which the contributions were made. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 149 - D. A member shall, upon commencement of membership, designate a refund beneficiary who shall receive the refund of the member contributions, plus interest if any, if the member dies and no survivor pension is payable. If the member is married or in a domestic partnership at the time of designation, written spousal or domestic partner consent shall be required if the designated refund beneficiary is other than the spouse or domestic partner. Marriage or entering into a domestic partnership subsequent to the designation shall automatically revoke a previous designation, and the spouse or domestic partner shall become the refund beneficiary unless or until another designation is filed with the association. Divorce or dissolution of domestic partnership subsequent to the designation shall automatically revoke designation of the former spouse or former domestic partner as refund beneficiary, or the right of the former spouse or former domestic partner to be refund beneficiary if no designation has been filed, and the refund shall be paid to the deceased member's estate unless the member filed a designation of refund beneficiary subsequent to the divorce or dissolution of domestic partnership. The refund shall be paid to the refund beneficiary named in the most recent designation of refund beneficiary on file with the association unless that beneficiary is deceased. If there is not a living refund beneficiary named in the most recent designation of refund beneficiary on file with the association, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 150 - the deceased member's accumulated member contributions shall be paid to the estate of the deceased member." Section 98. Section 10-11A-7 NMSA 1978 (being Laws 1983, Chapter 263, Section 7, as amended) is amended to read: "10-11A-7. RETIREMENT ANNUITY--SURVIVING BENEFICIARY.--A member may designate a spouse, domestic partner or dependent child as a beneficiary. In the event a retirement annuitant dies, the surviving beneficiary shall receive an annuity equal to two-thirds of the retirement annuity being paid to the retirement annuitant at the time of death; provided that the annuity paid to a beneficiary spouse or domestic partner shall cease upon the surviving spouse's or surviving domestic partner's marriage, entry into a domestic partnership or death and the annuity paid to a beneficiary dependent child shall cease upon the child reaching eighteen years of age or upon the child's death, whichever comes first." Section 99. Section 10-11B-2 NMSA 1978 (being Laws 2007, Chapter 149, Section 2) is amended to read: "10-11B-2. FINDINGS--PURPOSE.--The legislature finds that firefighters throughout the state risk their lives daily to protect the residents of New Mexico. The legislature further finds that when firefighters are killed in the line of duty, their immediate families can suffer grievously, both emotionally and economically. To recognize the substantial public safety benefits conferred by firefighters, and in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 151 - consideration of the sacrifices undertaken by these individuals and their families for the residents of New Mexico, it is the purpose of the Firefighters' Survivors Supplemental Benefits Act to ensure that certain supplemental death benefits accrue to the spouses or domestic partners and surviving children, or parents if there are no surviving children, [or] surviving spouse or surviving domestic partner, of firefighters killed in the line of duty." Section 100. Section 10-11B-5 NMSA 1978 (being Laws 2007, Chapter 149, Section 5) is amended to read: "10-11B-5. FIREFIGHTERS' SURVIVORS SUPPLEMENTAL BENEFITS--REVIEW COMMITTEE--DETERMINATION--PAYMENT.-- A. There is created the "firefighters' survivors supplemental death benefits review committee". The committee shall consist of the attorney general, the president of the New Mexico fire chiefs association, the state president of the New Mexico professional fire fighters association and the president of the New Mexico state fire fighters' association or their designees. B. The firefighters' survivors supplemental death benefits review committee shall determine whether a firefighter has been killed in the line of duty and advise the state fire marshal of that determination. In addition to any other death benefits provided by law, the surviving spouse, surviving domestic partner or surviving children shall be paid fifty underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 152 - thousand dollars ($50,000) as supplemental death benefits whenever a firefighter is killed in the line of duty. The benefits shall be paid from the fund. C. The benefits shall be paid entirely to the surviving spouse or surviving domestic partner. If there is no surviving spouse or surviving domestic partner, the benefits shall be distributed in pro rata shares to all surviving children. If there are no surviving children, [or] surviving spouse or surviving domestic partner, benefits shall be distributed to the surviving parents of the firefighter." Section 101. Section 10-12B-2 NMSA 1978 (being Laws 1992, Chapter 111, Section 2, as amended) is amended to read: "10-12B-2. DEFINITIONS.--As used in the Judicial Retirement Act: A. "association" means the public employees retirement association provided for in the Public Employees Retirement Act; B. "board" means the retirement board provided for in the Public Employees Retirement Act; C. "current judge or justice" means a judge or justice who occupied such an office on July 1, 1980 but who elected to be covered under the provisions of the retirement plan in effect at that time; D. "dependent child" means a natural or adopted child who is physically or mentally incapable of financial underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 153 - self-support, regardless of age; E. "educational retirement system" means the retirement system provided for in the Educational Retirement Act; F. "effective date of retirement" means the first day of the month following the month in which the member met all requirements for retirement; G. "former judge or justice" means a judge or justice who occupied such an office prior to July 1, 1980 but who had ceased to hold such an office prior to that date and who elected to be excluded from the provisions of the Judicial Retirement Act; H. "former member" means a person no longer in office who was previously covered pursuant to the provisions of Sections 10-12-1 through 10-12-18 NMSA 1978, but who has not retired pursuant to the provisions of the Judicial Retirement Act and who has received a refund of member contributions pursuant to the provisions of Sections 10-12B-1 through 10-12B-19 NMSA 1978; I. "fund" means the judicial retirement fund; J. "judge" means a judge of the metropolitan court, district court or court of appeals of New Mexico; K. "justice" means a justice of the supreme court of New Mexico; L. "member" means any judge or justice who is in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 154 - office and covered pursuant to the provisions of the Judicial Retirement Act, or any person no longer in office who was previously a judge or justice covered pursuant to the provisions of the Judicial Retirement Act, who has not retired and who has not received a refund of member contributions from the fund; M. "member contributions" means the amounts deducted from the salary of a member and credited to the member's individual account, together with interest, if any, credited thereto; N. "minor child" means a natural or adopted child who has not reached [his] the child's eighteenth birthday and who has not been emancipated by marriage, by entering into a domestic partnership or otherwise; O. "new judge or justice" means: (1) a judge or justice who first occupied such an office after July 1, 1980; or (2) a judge or justice who occupied such an office on or before July 1, 1980 and who has elected to be covered under the provisions of the Judicial Retirement Act; P. "pension" means a series of monthly payments to a retired member or survivor beneficiary pursuant to the provisions of the Judicial Retirement Act; Q. "refund beneficiary" means a person designated by the member, in writing in the form prescribed by the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 155 - association, as the person who would be refunded the member's accumulated member contributions payable if the member dies and no survivor pension is payable, or who would receive the difference between pension paid and accumulated member contributions if the retired member dies before receiving in pension payments the amount of the accumulated member contributions; R. "retire" means to: (1) terminate employment with all employers covered by any state system or the educational retirement system; and (2) receive a pension from one state system or the educational retirement system; S. "retired member" means a person who has met all requirements for retirement and who is receiving a pension from the fund; T. "salary" means the base salary or wages paid a member, including longevity pay, for personal services rendered; provided that salary does not include overtime pay; allowances for housing, clothing, equipment or travel; payments for unused sick leave, unless the unused sick leave payment is made through continuation of the member on the regular payroll for the period represented by that payment; and any other form of remuneration not specifically designated by law as included in salary pursuant to the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 156 - provisions of the Judicial Retirement Act; U. "state system" means the retirement programs provided pursuant to the provisions of the Public Employees Retirement Act, the Magistrate Retirement Act and the Judicial Retirement Act; V. "surviving spouse" or "surviving domestic partner" means the spouse to whom the member was married or the domestic partner with whom the member had a domestic partnership at the time of the member's death; W. "survivor beneficiary" means a person who receives a pension or who has been designated to be paid a pension as a result of the death of a member or retired member; and X. "years of service" means a period of time beginning on the date a person commences to hold office as a judge or justice because of appointment or election and ending on the date a person ceases to hold office as a judge or justice because of expiration of the judge's or justice's term, voluntary resignation, death or disability and shall include any fractions of years of service." Section 102. Section 10-12B-6 NMSA 1978 (being Laws 1992, Chapter 111, Section 6, as amended) is amended to read: "10-12B-6. REFUND OF CONTRIBUTIONS.-- A. If a member leaves office, the member may, with the written consent of the member's spouse or domestic underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 157 - partner, if any, withdraw the member's accumulated member contributions upon making written request in a form prescribed by the association. Upon written request of the member in the form prescribed by the association, a refund of member contributions may be made by a trustee-to-trustee transfer of the contributions from the member contribution fund directly to another qualified plan as allowed by the Internal Revenue Code of 1986. Withdrawal of member contributions shall result in forfeiture of the service credit accrued for the period during which the contributions were made. B. A member shall, upon commencement of membership, designate a refund beneficiary who shall receive the refund of the member contributions, plus interest, if the member dies and no survivor pension is payable. If the member is married or in domestic partnership at the time of designation, written spousal or domestic partner consent shall be required if the designated refund beneficiary is a person other than the spouse or domestic partner. Marriage or entering into a domestic partnership subsequent to the designation shall automatically revoke a previous designation, and the spouse or domestic partner shall become the refund beneficiary unless or until another designation is filed with the association. Divorce or dissolution of domestic partnership subsequent to the designation shall underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 158 - automatically revoke designation of the former spouse or former domestic partner as refund beneficiary if no designation has been filed, and the refund shall be paid to the deceased member's estate unless the member filed a designation of refund beneficiary subsequent to the divorce or dissolution of domestic partnership. The refund shall be paid to the refund beneficiary named in the most recent designation of refund beneficiary on file with the association unless that beneficiary is deceased. If there is not a living refund beneficiary named in the most recent designation of refund beneficiary on file with the association, the deceased member's accumulated member contributions shall be paid to the estate of the deceased member." Section 103. Section 10-12B-14 NMSA 1978 (being Laws 1992, Chapter 111, Section 14) is amended to read: "10-12B-14. SURVIVOR'S PENSION.-- A. Unless a member has designated a survivor beneficiary in accordance with Subsection B of this section, a survivor pension shall be paid for life to a member's or retired member's surviving spouse or surviving domestic partner. B. A member may designate, in writing in a form prescribed by the association, a survivor beneficiary to receive the survivor's pension described in this section. If underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 159 - the member is married or in a domestic partnership, a designation of survivor beneficiary other than the member's spouse or domestic partner may only be made with the written consent of the member's spouse or domestic partner. Marriage or entering into a domestic partnership subsequent to a designation of survivor beneficiary shall automatically revoke the designation of survivor beneficiary. A designation of survivor beneficiary made pursuant to a court order issued under Section [7 of the Judicial Retirement Act] 10-12B-7 NMSA 1978 shall not require the consent of the member's spouse or domestic partner, if any, and shall not be revoked by the subsequent remarriage of the member or a subsequent entry into a domestic partnership by the member. A designation of survivor beneficiary may be revoked by the member at any time prior to the member's retirement. If the member is married or in a domestic partnership, a revocation of designation of survivor beneficiary may only be made with the written consent of the member's spouse or domestic partner. C. If there is no surviving spouse or surviving domestic partner and no designated survivor beneficiary or if the surviving spouse or surviving domestic partner dies while there are still minor and dependent children of the member, the survivor's pension shall be paid to all minor and dependent children, if any, of the member, in equal shares, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 160 - so long as each child remains a minor or dependent child. As each child ceases to be a minor or dependent child, the number of shares shall be reduced and the amount payable to each remaining child increased proportionately so that the total survivor's pension remains unchanged as long as there is any such child. D. The survivor's pension is equal to seventy- five percent of the member's pension. E. Survivor beneficiaries shall be eligible for other benefits provided pursuant to the provisions of the Judicial Retirement Act, including cost-of-living adjustments and continuation of group insurance benefits. F. If a member dies while receiving a disability retirement pension, the survivor beneficiary shall receive the survivor pension provided pursuant to the provisions of the Judicial Retirement Act." Section 104. Section 10-12C-2 NMSA 1978 (being Laws 1992, Chapter 118, Section 2, as amended) is amended to read: "10-12C-2. DEFINITIONS.--As used in the Magistrate Retirement Act: A. "association" means the public employees retirement association provided for in the Public Employees Retirement Act; B. "board" means the retirement board provided for in the Public Employees Retirement Act; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 161 - C. "dependent child" means a natural or adopted child who is physically or mentally incapable of financial self-support, regardless of age; D. "educational retirement system" means the retirement system provided for in the Educational Retirement Act; E. "effective date of retirement" means the first day of the month following the month in which the member met all requirements for retirement; F. "former member" means a person no longer in office who was previously covered pursuant to the provisions of Sections 10-12A-1 through 10-12A-13 NMSA 1978, but who has not retired pursuant to the provisions of the Magistrate Retirement Act and who has received a refund of member contributions pursuant to the provisions of Sections 10-12C-1 through 10-12C-18 NMSA 1978; G. "fund" means the magistrate retirement fund; H. "magistrate" means a magistrate judge; I. "member" means any magistrate who is in office and covered pursuant to the provisions of the Magistrate Retirement Act, or any person no longer in office who was previously a magistrate covered pursuant to the provisions of the Magistrate Retirement Act, who has not retired and who has not received a refund of member contributions from the fund; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 162 - J. "member contributions" means the amounts deducted from the salary of a member and credited to the member's individual account, together with interest, if any, credited thereto; K. "minor child" means a natural or adopted child who has not reached [his] the natural or adopted child's eighteenth birthday and who has not been emancipated by marriage, by entering into a domestic partnership or otherwise; L. "pension" means a series of monthly payments to a retired member or survivor beneficiary pursuant to the provisions of the Magistrate Retirement Act; M. "refund beneficiary" means a person designated by the member, in writing in the form prescribed by the association, as the person who would be refunded the member's accumulated member contributions payable if the member dies and no survivor pension is payable, or as the person who would receive the difference between pension paid and accumulated member contributions if the retired member dies before receiving in pension payments the amount of the accumulated member contributions; N. "retire" means to: (1) terminate employment with all employers covered by any state system or the educational retirement system; and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 163 - (2) receive a pension from one state system or the educational retirement system; O. "retired member" means a person who has met all requirements for retirement and who is receiving a pension from the fund; P. "salary" means the base salary or wages paid a member, including longevity pay, for personal services rendered; provided that salary does not include overtime pay; allowances for housing, clothing, equipment or travel; payments for unused sick leave, unless the unused sick leave payment is made through continuation of the member on the regular payroll for the period represented by that payment; and any other form of remuneration not specifically designated by law as included in salary pursuant to the provisions of the Magistrate Retirement Act; Q. "state system" means the retirement programs provided pursuant to the provisions of the Public Employees Retirement Act, the Magistrate Retirement Act and the Judicial Retirement Act; R. "surviving spouse" or "surviving domestic partner" means the spouse to whom the member was married or the domestic partner with whom the member had a domestic partnership at the time of the member's death; S. "survivor beneficiary" means a person who receives a pension or who has been designated to be paid a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 164 - pension as a result of the death of a member or retired member; and T. "years of service" means a period of time beginning on the date a person commences to hold office as a magistrate because of appointment or election and ending on the date a person ceases to hold office as a magistrate because of expiration of the magistrate's term, voluntary resignation, death or disability and shall include any fractions of years of service." Section 105. Section 10-12C-6 NMSA 1978 (being Laws 1992, Chapter 118, Section 6, as amended) is amended to read: "10-12C-6. REFUND OF CONTRIBUTIONS.-- A. If a member leaves office, the member may, with the written consent of the member's spouse or domestic partner, if any, withdraw the member's accumulated member contributions, upon making written request in a form prescribed by the association. Upon written request of the member in the form prescribed by the association, a refund of member contributions may be made by a trustee-to-trustee transfer of the contributions from the member contribution fund directly to another qualified plan as allowed by the Internal Revenue Code of 1986. Withdrawal of member contributions shall result in forfeiture of the service credit accrued for the period during which the contributions were made. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 165 - B. A member shall, upon commencement of membership, designate a refund beneficiary who shall receive the refund of the member contributions, plus interest if any, if the member dies and no survivor pension is payable. If the member is married or in a domestic partnership at the time of designation, written spousal or domestic partner consent shall be required if the designated refund beneficiary is a person other than the spouse or domestic partner. Marriage or entering into a domestic partnership subsequent to the designation shall automatically revoke a previous designation, and the spouse or domestic partner shall become the refund beneficiary unless or until another designation is filed with the association. Divorce or dissolution of domestic partnership subsequent to the designation shall automatically revoke designation of the former spouse or former domestic partner as refund beneficiary, or the right of the former spouse or former domestic partner to be refund beneficiary if no designation has been filed, and the refund shall be paid to the deceased member's estate unless the member filed a designation of refund beneficiary subsequent to the divorce or dissolution of domestic partnership. The refund shall be paid to the refund beneficiary named in the most recent designation of refund beneficiary on file with the association unless that beneficiary is deceased. If there is not a living refund underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 166 - beneficiary named in the most recent designation of refund beneficiary on file with the association, the deceased member's accumulated member contributions shall be paid to the estate of the deceased member." Section 106. Section 10-12C-13 NMSA 1978 (being Laws 1992, Chapter 118, Section 13) is amended to read: "10-12C-13. SURVIVOR'S PENSION.-- A. Unless a member has designated a survivor beneficiary in accordance with Subsection B of this section, a survivor pension shall be paid for life to a member's or retired member's surviving spouse or surviving domestic partner. B. A member may designate, in writing in a form prescribed by the association, a survivor beneficiary to receive the survivor's pension described in this section. If the member is married or in a domestic partnership, a designation of survivor beneficiary other than the member's spouse or domestic partner may only be made with the written consent of the member's spouse or domestic partner. Marriage or subsequent entry into a domestic partnership subsequent to a designation of survivor beneficiary shall automatically revoke the designation of survivor beneficiary. A designation of survivor beneficiary made pursuant to a court order issued under Section [7 of the Magistrate Retirement Act] 10-12C-7 NMSA 1978 shall not require the consent of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 167 - member's spouse or domestic partner, if any, and shall not be revoked by the subsequent remarriage of or subsequent entry into a domestic partnership by the member. A designation of survivor beneficiary may be revoked by the member at any time prior to the member's retirement. If the member is married or in a domestic partnership, a revocation of designation of survivor beneficiary may only be made with the written consent of the member's spouse or domestic partner. C. If there is no surviving spouse or surviving domestic partner and no designated survivor beneficiary or if the surviving spouse or surviving domestic partner dies while there are still minor and dependent children of the member, the survivor's pension shall be paid to all minor and dependent children, if any, of the member, in equal shares, so long as each child remains a minor or dependent child. As each child ceases to be a minor or dependent child, the number of shares shall be reduced and the amount payable to each remaining child increased proportionately so that the total survivor's pension remains unchanged as long as there is any such child. D. The survivor's pension is equal to seventy- five percent of the member's pension. E. Survivor beneficiaries shall be eligible for other benefits provided pursuant to the provisions of the Magistrate Retirement Act, including cost-of-living underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 168 - adjustments and continuation of group insurance benefits. F. If a member dies while receiving a disability retirement pension, the survivor beneficiary shall receive the survivor pension provided pursuant to the provisions of the Magistrate Retirement Act." Section 107. Section 10-16-2 NMSA 1978 (being Laws 1967, Chapter 306, Section 2, as amended) is amended to read: "10-16-2. DEFINITIONS.--As used in the Governmental Conduct Act: A. "business" means a corporation, partnership, sole proprietorship, firm, organization or individual carrying on a business; B. "confidential information" means information that by law or practice is not available to the public; C. "employment" means rendering of services for compensation in the form of salary as an employee; D. "family" means an individual's spouse or domestic partner, parents, children or siblings, by consanguinity or affinity; E. "financial interest" means an interest held by an individual or the individual's family that is: (1) an ownership interest in business; or (2) any employment or prospective employment for which negotiations have already begun; F. "official act" means an official decision, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 169 - recommendation, approval, disapproval or other action that involves the use of discretionary authority; G. "public officer or employee" means any person who has been elected to, appointed to or hired for any state office and who receives compensation in the form of salary or is eligible for per diem or mileage but excludes legislators; H. "standards" means the conduct required by the Governmental Conduct Act; I. "state agency" means any branch, agency, instrumentality or institution of the state; and J. "substantial interest" means an ownership interest that is greater than twenty percent." Section 108. Section 10-16A-2 NMSA 1978 (being Laws 1993, Chapter 46, Section 40, as amended) is amended to read: "10-16A-2. DEFINITIONS.--As used in the Financial Disclosure Act: A. "business" means a corporation, partnership, sole proprietorship, firm, organization or individual carrying on a business; B. "employment" means rendering of services for compensation in the form of salary as an employee; C. "financial interest" means an interest held by an individual or [his] the individual's spouse or domestic partner that is: (1) an ownership interest in business; or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 170 - (2) any employment or prospective employment for which negotiations have already begun; D. "official act" means an official decision, recommendation, approval, disapproval or other action that involves the use of discretionary authority; E. "person" means an individual or entity; and F. "public officer or employee" means any person who has been elected to, appointed to or hired for any state office and who receives compensation in the form of salary or is eligible for per diem or mileage, but excludes legislators and judges." Section 109. Section 10-16A-3 NMSA 1978 (being Laws 1993, Chapter 46, Section 41, as amended) is amended to read: "10-16A-3. REQUIRED DISCLOSURES FOR CERTAIN CANDIDATES AND PUBLIC OFFICERS AND EMPLOYEES--CONDITION FOR PLACEMENT ON BALLOT OR APPOINTMENT.-- A. At the time of filing a declaration of candidacy or nominating petition, a candidate for legislative or statewide office shall file with the proper filing officer, as defined in Section 1-8-25 NMSA 1978, a financial disclosure statement on a prescribed form. In addition, each year thereafter during the month of January, a legislator and a person holding a statewide office shall file with the proper filing officer a financial disclosure statement. If the proper filing officer is not the secretary of state, the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 171 - proper filing officer shall forward a copy of the financial disclosure statement to the secretary of state within seventy-two hours. B. A state agency head or official whose appointment to a board or commission is subject to confirmation by the senate shall file with the secretary of state a financial disclosure statement within thirty days of appointment and during the month of January every year thereafter that [he] the state agency head or official holds public office. C. The financial disclosure statement shall include for any person identified in Subsection A or B of this section and the person's spouse or domestic partner the following information for the prior calendar year: (1) the full name, mailing address and residence address of each person covered in the disclosure statement, except the address of the spouse or domestic partner need not be disclosed; the name and address of the person's and spouse's or domestic partner's employer and the title or position held; and a brief description of the nature of the business or occupation; (2) all sources of gross income of more than five thousand dollars ($5,000) to each person covered in the disclosure statement, identified by general category descriptions that disclose the nature of the income source, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 172 - in the following broad categories: law practice or consulting operation or similar business, finance and banking, farming and ranching, medicine and health care, insurance (as a business and not as payment on an insurance claim), oil and gas, transportation, utilities, general stock market holdings, bonds, government, education, manufacturing, real estate, consumer goods sales with a general description of the consumer goods and the category "other", with direction that the income source be similarly described. In describing a law practice, consulting operation or similar business of the person or spouse or domestic partner, the major areas of specialization or income sources shall be described, and if the spouse or domestic partner or a person in the reporting person's or spouse's or domestic partner's law firm, consulting operation or similar business is or was during the reporting calendar year or the prior calendar year a registered lobbyist under the Lobbyist Regulation Act, the names and addresses of all clients represented for lobbying purposes during those two years shall be disclosed; (3) a general description of the type of real estate owned in New Mexico, other than a personal residence, and the county where it is located; (4) all other New Mexico business interests not otherwise listed of ten thousand dollars ($10,000) or more in a New Mexico business or entity, including any underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 173 - position held and a general statement of purpose of the business or entity; (5) all memberships held by the reporting individual and [his] the reporting individual's spouse or domestic partner on boards of for-profit businesses in New Mexico; (6) all New Mexico professional licenses held; (7) each state agency that was sold goods or services in excess of five thousand dollars ($5,000) during the prior calendar year by a person covered in the disclosure statement; (8) each state agency, other than a court, before which a person covered in the disclosure statement represented or assisted clients in the course of [his] the person's employment during the prior calendar year; and (9) a general category that allows the person filing the disclosure statement to provide whatever other financial interest or additional information the person believes should be noted to describe potential areas of interest that should be disclosed. D. A complete financial disclosure statement shall be filed every year. The secretary of state shall mail each elected official required to file a financial disclosure statement a copy of any statement the person filed the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 174 - previous year. E. The financial disclosure statements filed pursuant to this section are public records open to public inspection during regular office hours and shall be retained by the state for five years from the date of filing. F. A person who files a financial disclosure statement may file an amended statement at any time to reflect significant changed circumstances that occurred since the last statement was filed. G. [Any] A candidate for a legislative or statewide office who fails or refuses to file a financial disclosure statement required by this section before the final date for the withdrawal of candidates provided for in the Election Code shall not have [his] the candidate's name printed on the election ballot. H. For a state agency head or an official whose appointment to a board or commission is subject to confirmation by the senate, the filing of the financial disclosure statement required by this section is a condition of entering upon and continuing in state employment or holding an appointed position." Section 110. Section 10-16B-2 NMSA 1978 (being Laws 2007, Chapter 226, Section 2) is amended to read: "10-16B-2. DEFINITIONS.--As used in the Gift Act: A. "family" means a spouse or domestic partner underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 175 - and dependent children; B. "gift" means any donation or transfer without commensurate consideration of money, property, service, loan, promise or any other thing of value, including food, lodging, transportation and tickets for entertainment or sporting events, but does not include: (1) any activity, including but not limited to the acceptance of a donation, transfer or contribution, or the making of an expenditure or reimbursement, that is authorized by the Campaign Reporting Act or the Federal Election Campaign Act of 1971, as amended; (2) a gift given under circumstances that make it clear that the gift is motivated by a family relationship or close personal relationship rather than the recipient's position as a state officer or employee or candidate for state office; (3) compensation for services rendered or capital invested that is: (a) normal and reasonable in amount; (b) commensurate with the value of the service rendered or the magnitude of the risk taken on the investment; (c) in no way increased or enhanced by reason of the recipient's position as a state officer or employee or candidate for state office; and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 176 - (d) not otherwise prohibited by law; (4) payment for a sale or lease of tangible or intangible property that is commensurate with the value of the services rendered and is in no way increased or enhanced by reason of the recipient's position as a state officer or employee or candidate for state office; (5) a commercially reasonable loan made in the ordinary course of the lender's business on terms that are available to all similarly qualified borrowers; (6) reimbursement for out-of-pocket expenses actually incurred in the course of performing a service for the person making the reimbursement; (7) any gift accepted on behalf of and to be used by the state or a political subdivision of the state, including travel, subsistence and related expenses accepted by a state agency in connection with a state officer's or employee's official duties that take place away from the state official's or employee's station of duty; (8) anything for which fair market value is paid or reimbursed by the state officer or employee or candidate for state office; (9) reasonable expenses for a bona fide educational program that is directly related to the state officer's or employee's official duties; or (10) a retirement gift; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 177 - C. "market value" means the retail cost a person would incur to purchase a gift; D. "restricted donor" means a person who: (1) is or is seeking to be a party to any one or any combination of sales, purchases, leases or contracts to, from or with the agency in which the donee holds office or is employed; (2) will personally be, or is the agent of a person who will be, directly and substantially affected financially by the performance or nonperformance of the donee's official duty in a way that is greater than the effect on the public generally or on a substantial class of persons to which the person belongs as a member of a profession, occupation, industry or region; (3) is personally, or is the agent of a person who is, the subject of or party to a matter that is pending before a regulatory agency and over which the donee has discretionary authority as part of the donee's official duties or employment within the regulatory agency; or (4) is a lobbyist or a client of a lobbyist with respect to matters within the donee's jurisdiction; and E. "state officer or employee" means any person who has been elected to, appointed to or hired for any state office and who receives compensation in the form of salary or is eligible for per diem or mileage." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 178 - Section 111. Section 11-7-5 NMSA 1978 (being Laws 1969, Chapter 118, Section 5) is amended to read: "11-7-5. NOTICE OF TRANSFER.--Whenever the compact administrator for the Interstate Compact on Mental Health receives a request for the transfer of a patient from an institution in this state to an institution in another party state and [he] the compact administrator determines that the transfer is in the best interest of the patient, [he] the compact administrator shall give notice of the proposed transfer to the patient, the spouse or domestic partner of the patient, the parents of the patient and the adult children of the patient. This notice shall also notify these people of the right, if requested, to a court hearing on the proposed transfer and shall contain a request for written consent from these people for the transfer. The notice shall be in writing, and the respondents shall be given fourteen days from the date of mailing of the notice to consent or object to the transfer or to request a court hearing. No transfer shall be made if there is any written objection or request made to the compact administrator except upon order of the court after hearing. However, no transfer shall be made if the compact administrator receives written objections from all these people. No transfer shall be made of a patient ordered hospitalized by any court unless written notice of the proposed transfer has been given to that underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 179 - court." Section 112. Section 12-2A-3 NMSA 1978 (being Laws 1997, Chapter 173, Section 3) is amended to read: "12-2A-3. GENERAL DEFINITIONS.--In the statutes and rules of New Mexico: A. "annually" means per year; B. "age of majority" begins on the first instant of an individual's eighteenth birthday; C. "child" includes a child by adoption; D. "family" includes a domestic partner and a domestic partnership family; E. "includes" and "including" are terms of expansion, not of limitation or exclusion, and are equivalent to "includes but is not limited to" and "including but not limited to"; [D.] F. "oath" includes an affirmation; [E.] G. "person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture or any other legal or commercial entity; [F.] H. "personal property" means property other than real property; [G.] I. "personal representative" of a decedent's estate includes an administrator and executor; [H.] J. "population" means the number of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 180 - individuals enumerated in the most recent federal decennial census; [I.] K. "property" means real and personal property; [J.] L. "real property" means an estate or interest in, over or under land and other things or interests, including minerals, water, structures and fixtures, that by custom, usage or law pass with a transfer of land even if the estate or interest is not described or mentioned in the contract of sale or instrument of conveyance and, if appropriate to the context, the land in which the estate or interest is claimed; [K.] M. "rule" means a rule, regulation, order, standard or statement of policy, including amendments thereto or repeals thereof, adopted and promulgated by an administrative agency, that purports to affect one or more administrative agencies other than the promulgating agency or that purports to affect persons who are not members or employees of the promulgating agency; [L.] N. "sign" or "subscribe" includes the execution or adoption of any symbol by a person with the present intention to authenticate a writing; [M.] O. "state" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico or any territory or insular possession subject to the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 181 - jurisdiction of the United States; [N.] P. "swear" includes affirm; [O.] Q. "will" includes a codicil; and [P.] R. "written" and "in writing" includes printing, engraving or any other mode of representing words and letters." Section 113. Section 13-1-62 NMSA 1978 (being Laws 1984, Chapter 65, Section 35) is amended to read: "13-1-62. DEFINITION--IMMEDIATE FAMILY.--"Immediate family" means a spouse or domestic partner; children; parents; brothers; and sisters." Section 114. Section 13-1-191.1 NMSA 1978 (being Laws 2006, Chapter 81, Section 1, as amended) is amended to read: "13-1-191.1. CAMPAIGN CONTRIBUTION DISCLOSURE AND PROHIBITION.-- A. This section applies to prospective contractors with the state or a local public body. B. A prospective contractor subject to this section shall disclose all campaign contributions given by the prospective contractor or a family member or representative of the prospective contractor to an applicable public official of the state or a local public body during the two years prior to the date on which a proposal is submitted or, in the case of a sole source or small purchase contract, the two years prior to the date on which the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 182 - contractor signs the contract, if the aggregate total of contributions given by the prospective contractor or a family member or representative of the prospective contractor to the public official exceeds two hundred fifty dollars ($250) over the two-year period. C. The disclosure shall indicate the date, the amount, the nature and the purpose of the contribution. The disclosure statement shall be on a form developed and made available electronically by the department of finance and administration to all state agencies and local public bodies. The state agency or local public body that procures the services or items of tangible personal property shall indicate on the form the name or names of every applicable public official, if any, for which disclosure is required by a prospective contractor for each competitive sealed proposal, sole source or small purchase contract. The form shall be filed with the state agency or local public body as part of the competitive sealed proposal or, in the case of a sole source or small purchase contract, on the date on which the contractor signs the contract. D. A prospective contractor submitting a disclosure statement pursuant to this section who has not contributed to an applicable public official, whose family members have not contributed to an applicable public official or whose representatives have not contributed to an underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 183 - applicable public official shall make a statement that no contribution was made. E. A prospective contractor or a family member or representative of the prospective contractor shall not give a campaign contribution or other thing of value to an applicable public official or the applicable public official's employees during the pendency of the procurement process or during the pendency of negotiations for a sole source or small purchase contract. F. A solicitation or proposed award for a proposed contract may be canceled pursuant to Section 13-1-181 NMSA 1978 or a contract that is executed may be ratified or terminated pursuant to Section 13-1-182 NMSA 1978 if: (1) a prospective contractor fails to submit a fully completed disclosure statement pursuant to this section; or (2) a prospective contractor or family member or representative of the prospective contractor gives a campaign contribution or other thing of value to an applicable public official or the applicable public official's employees during the pendency of the procurement process. G. As used in this section: (1) "applicable public official" means a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 184 - person elected to an office or a person appointed to complete a term of an elected office, who has the authority to award or influence the award of the contract for which the prospective contractor is submitting a competitive sealed proposal or who has the authority to negotiate a sole source or small purchase contract that may be awarded without submission of a sealed competitive proposal; (2) "family member" means a spouse, domestic partner, father, mother, child, father-in-law, mother-in-law, daughter-in-law or son-in-law of: (a) a prospective contractor, if the prospective contractor is a natural person; or (b) an owner of a prospective contractor; (3) "pendency of the procurement process" means the time period commencing with the public notice of the request for proposals and ending with the award of the contract or the cancellation of the request for proposals; (4) "prospective contractor" means a person or business that is subject to the competitive sealed proposal process set forth in the Procurement Code or is not required to submit a competitive sealed proposal because that person or business qualifies for a sole source or small purchase contract; and (5) "representative of the prospective underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 185 - contractor" means an officer or director of a corporation, a member or manager of a limited liability corporation, a partner of a partnership or a trustee of a trust of the prospective contractor." Section 115. Section 17-3-4 NMSA 1978 (being Laws 1964 (1st S.S.), Chapter 17, Section 4, as amended) is amended to read: "17-3-4. RESIDENCE.--As used in Chapter 17 NMSA 1978: A. a "resident" entitled to purchase resident hunting and fishing licenses is any person: (1) who is a United States citizen and who, for a period of not less than ninety days immediately preceding the date of application for the license, has been domiciled in New Mexico and has not claimed residency elsewhere for any purpose; (2) who is not a citizen of the United States but who is legally within the United States and has actually lived in this state for ninety days immediately preceding [his] the license application; (3) not otherwise entitled to claim residence, who is a student attending any educational institution in this state, has so attended and actually lived in this state for at least one full term immediately preceding [his] the license application and presents with [his] the application a certificate of such attendance from underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 186 - proper authorities of the educational institution; (4) not otherwise entitled to claim residence, who is a member of the armed forces of the United States and permanently assigned to a military installation located within this state and presents with [his] the person's license application a certificate of such assignment from [his] the person's commanding officer or designated representative, or the spouse or domestic partner or dependent of such person, not otherwise entitled to claim residence, living within the same household and similarly certified by the person's commanding officer; or (5) not otherwise entitled to claim residence, who is a member of the armed forces of the United States and officially stationed at a military reservation located partially in this state and partially in an adjacent state, but only for a special license valid only for hunting and fishing in this state on those reservations; and B. a "nonresident" who must purchase nonresident hunting and fishing licenses is any person not a resident, including any temporary resident who maintains [his] the person's home outside of the state." Section 116. Section 19-3-3 NMSA 1978 (being Laws 1851-1852, Page 274, as amended) is amended to read: "19-3-3. TRANSFER OF RIGHTS--CONSENT OF SPOUSE OR DOMESTIC PARTNER--EXEMPTION.--[Sec. 7.] The owner of what is underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 187 - known as a valid claim or improvement under the laws of this state on public lands of the United States shall be deemed in possession of a transferable interest therein, and any sale of such improvement shall be considered a sufficient consideration to support a promise; provided that no such sale shall be valid to convey such improvement when made by the head of family unless the [wife] spouse or domestic partner of the vendor, if any there be, shall give [her] consent thereto; and provided also that such land and the claim thereto shall be exempt from forced sale under execution." Section 117. Section 20-4-11 NMSA 1978 (being Laws 1987, Chapter 318, Section 28) is amended to read: "20-4-11. SURVIVORS' BENEFIT--TUITION PAYMENT.--The surviving spouse or surviving domestic partner and all surviving minor children of a member of the national guard who dies in line of duty while serving on state military status shall be provided free tuition up to one baccalaureate degree or similar vocational certification at any state- sponsored university, college or institute of learning." Section 118. Section 20-4-12 NMSA 1978 (being Laws 1987, Chapter 318, Section 29) is amended to read: "20-4-12. MILITARY LAST WILL AND TESTAMENT FOR NATIONAL GUARD AND RESERVES.-- A. Notwithstanding any other provision of law to underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 188 - the contrary, any member of the national guard or reserves may execute a military last will and testament (military will) according to the provisions of this section. Such will may be executed within or without the state and shall be given the same force and effect as any will properly executed pursuant to Chapter 45 NMSA 1978, the provisions of which shall govern the rules of construction of a military will and the administration of the testator's estate. B. Mindful of the mobilization readiness required of members of the national guard and reserves, the adjutant general may prescribe regulations and forms for a military will. These regulations and forms shall be designed to achieve basic [testmentary] testamentary disposition of the member's property in contemplation of rapid troop mobilization and of the hazards of armed conflict. They shall be designed for preparation by unit administrative personnel according to the desires of the testator. No liability or cause of action shall attach to the erroneous act or omission of any person assisting a testator in the preparation or execution of a military will. C. The scope of a military will shall be limited to the following dispositions and provisions: (1) disposition of the testator's entire estate to the testator's spouse or domestic partner or in the event the testator is predeceased by the spouse or domestic underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 189 - partner then to the testator's children in equal shares and to their descendants by right of representation; (2) if the testator is not survived by a spouse or domestic partner, children or lineal descendents, then disposition of the testator's entire estate shall be according to the laws of intestate succession; (3) a guardian for minor children may be nominated by the testator in the event that any minor child's other natural parent is or shall become unwilling or unable to serve as the child's guardian; (4) a personal representative may be nominated by the testator in the event that the testator's surviving spouse or surviving domestic partner is or shall become unwilling or unable to so serve; and (5) trust provisions are prohibited as beyond the scope of a military will. D. A military will shall be executed, witnessed and attested to before two persons, one of whom [must] shall be a commissioned, warrant or noncommissioned officer of the national guard or state defense force. A military will so executed, witnessed and attested shall be deemed a self- proving will. E. A military will may be executed only by a member of the national guard or reserves and not by a member's civilian dependents. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 190 - F. A military will shall, during the testator's membership in the national guard or reserves, be maintained as a permanent record in the member's military personnel records jacket. In the event of the member's death, the will shall promptly be delivered by military authorities to the appropriate court of competent jurisdiction. G. Upon discharge, separation or retirement of the member from the national guard or reserves, a military will shall become null and void." Section 119. Section 20-4-14 NMSA 1978 (being Laws 1987, Chapter 318, Section 31, as amended) is amended to read: "20-4-14. RESIDENT TUITION.--An active member of the national guard and the member's spouse or domestic partner and children shall be deemed in-state residents for purposes of determining tuition and fees at all state institutions of higher learning." Section 120. Section 21-1-3 NMSA 1978 (being Laws 1970, Chapter 47, Section 1, as amended) is amended to read: "21-1-3. STATE EDUCATIONAL INSTITUTIONS--RESIDENT STUDENTS.-- A. For the purpose of tuition payment at the resident student rates at state educational institutions enumerated in Article 12, Section 11 of the constitution of New Mexico, "resident student" includes: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 191 - (1) any person not otherwise entitled to claim residence who is a member of the armed forces of the United States or armed forces of a foreign country assigned to active duty within the exterior boundaries of this state; and (2) the spouse, domestic partner or dependent child of any person who qualifies under Paragraph (1) of this subsection. B. Assignment to active duty within the exterior boundaries of this state may be established by a certificate of assignment from the commanding officer of the person so assigned. C. For the purpose of tuition payment at resident student rates at New Mexico highlands university, "resident student" may include any person who is a Native American and a citizen of the United States. D. For the purposes of tuition payment and budget and revenue calculations, the board of regents of any post- secondary, state educational institution enumerated in Article 12, Section 11 of the constitution of New Mexico may determine that "resident student" includes any Texas resident who resides within a one hundred thirty-five mile radius of that institution. E. For the purpose of tuition payment and budget and revenue calculations, "resident student" includes any underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 192 - student receiving an athletic scholarship from a post- secondary educational institution set forth in Article 12, Section 11 of the constitution of New Mexico. F. For the purpose of tuition payment and budget and revenue calculations, "resident student" includes a member of an Indian nation, tribe or pueblo located wholly or partially in New Mexico, regardless of the residence of the member prior to acceptance at a post-secondary educational institution enumerated in Article 12, Section 11 of the constitution of New Mexico for either undergraduate or post-graduate enrollment." Section 121. Section 21-1-4.5 NMSA 1978 (being Laws 2005, Chapter 168, Section 1, as amended) is amended to read: "21-1-4.5. RESIDENT TUITION FOR VETERANS OF THE ARMED FORCES OF THE UNITED STATES AND FAMILIES OF MEMBERS OF THE ARMED FORCES.-- A. A veteran of the armed forces of the United States shall be deemed an in-state resident for purposes of determining tuition and fees at all state institutions of higher learning, provided that the veteran is eligible for veterans' education benefits under federal law. In order for a veteran who is not a resident of New Mexico to receive in-state tuition rates, the veteran shall use the veteran's federal educational benefits at a state public post-secondary institution. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 193 - B. A spouse, domestic partner or child of an active member of the armed forces who is assigned to duty in New Mexico shall be deemed an in-state resident for purposes of determining tuition and fees at all state institutions of higher learning. C. A spouse, domestic partner or child of an active member of the armed forces who is assigned to duty elsewhere immediately following assignment to duty in New Mexico shall be deemed an in-state resident for purposes of determining tuition and fees at all state institutions of higher learning as long as the spouse, domestic partner or child resides continuously in New Mexico. D. A spouse, domestic partner or child of an active member of the armed forces who dies or is killed shall be deemed an in-state resident for purposes of determining tuition and fees at all state institutions of higher learning if the spouse, domestic partner or child becomes a resident of New Mexico within sixty days of the date of death. E. A veteran of the armed forces who pays tuition and fees at the rate provided for New Mexico residents under this section is entitled to pay tuition and fees at the rate provided for New Mexico residents in any subsequent term or semester while the veteran is enrolled in a degree or certificate program. F. If an active member of the armed forces is underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 194 - stationed outside New Mexico and the member's spouse, domestic partner or child establishes residence in New Mexico and files with a state institution of higher learning at which the spouse, domestic partner or child plans to register a letter of intent to establish and continue residing in New Mexico, the spouse, domestic partner or child shall be deemed an in-state resident for purposes of determining tuition and fees at that state institution of higher learning without regard to length of time that the spouse, domestic partner or child has resided in the state. G. A spouse, domestic partner or child of an active member of the armed forces who pays tuition and fees at the rate provided for New Mexico residents under this section is entitled to pay tuition and fees at the rate provided for New Mexico residents in any subsequent term or semester while the person is continuously enrolled in the same degree or certificate program. For purposes of this subsection, a person is not required to enroll in a summer term to remain continuously enrolled in a degree or certificate program. A person's eligibility to pay tuition and fees at the rate provided for New Mexico residents under this subsection does not terminate because the person is no longer a child, domestic partner or spouse of a member of the armed forces. H. As used in this section, "armed forces" means underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 195 - the United States army, navy, air force, marine corps or coast guard. I. As used in this section, [a] "veteran" means a person who has been discharged under conditions other than dishonorable from service in the army, navy, marine corps, air force or coast guard of the United States." Section 122. Section 21-21F-3 NMSA 1978 (being Laws 1986, Chapter 50, Section 3) is amended to read: "21-21F-3. DEFINITIONS.--As used in the Fire Fighter and Peace Officer Survivors Scholarship Act: A. "board", "commission" or "department" means the [board of educational finance] the higher education department; B. "eligible institution" means any state institution of higher education in New Mexico; C. "fire fighter" means any member of a fire department that is part of or administered by the state or any political subdivision of the state; D. "peace officer" means any member of a police or sheriff's department that is part of or administered by the state or any political subdivision of the state and officers in the corrections department [of corrections]; and E. "survivor" means the spouse or domestic partner of the fire fighter or peace officer killed in the line of duty and any adopted or natural children twenty-one underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 196 - years of age or under at the time of [his] the fire fighter's or peace officer's death." Section 123. Section 22-5-6 NMSA 1978 (being Laws 1971, Chapter 199, Section 1, as amended) is amended to read: "22-5-6. NEPOTISM PROHIBITED.-- A. A local superintendent shall not initially employ or approve the initial employment in any capacity of a person who is the spouse, domestic partner, father, father- in-law, mother, mother-in-law, son, son-in-law, daughter, daughter-in-law, brother, brother-in-law, sister or sister- in-law of a member of the local school board or the local superintendent. The local school board may waive the nepotism rule for family members of a local superintendent. B. Nothing in this section shall prohibit the continued employment of a person employed on or before July 1, 2008." Section 124. Section 22-8B-10 NMSA 1978 (being Laws 1999, Chapter 281, Section 10, as amended) is amended to read: "22-8B-10. CHARTER SCHOOLS--EMPLOYEES.-- A. A charter school shall hire its own employees. The provisions of the School Personnel Act shall apply to such employees. The head administrator of the charter school shall employ, fix the salaries of, assign, terminate and discharge all employees of the charter school. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 197 - B. The head administrator of a charter school shall not initially employ or approve the initial employment in any capacity of a person who is the spouse, domestic partner, father, father-in-law, mother, mother-in-law, son, son-in-law, daughter, daughter-in-law, brother, brother-in- law, sister or sister-in-law of a member of the governing body or the head administrator. The governing body may waive the nepotism rule for family members of a head administrator. C. Nothing in this section shall prohibit the continued employment of a person employed on or before July 1, 2008." Section 125. Section 23-4-3 NMSA 1978 (being Laws 1974 (S.S.), Chapter 2, Section 4, as amended) is amended to read: "23-4-3. ELIGIBILITY FOR CARE--STANDARDS.-- A. Occupancy in the New Mexico state veterans' home and the Fort Bayard medical center veterans' unit shall be for veterans of service in the armed forces of the United States who have served on active duty pursuant to rules adopted by the secretary of health consistent with federal guidelines. To be eligible for admission and continued occupancy, a veteran must be: (1) a citizen of the United States who enlisted or was drafted, inducted or commissioned in the armed forces of the United States, who was accepted for and assigned to active duty in the armed forces and was not underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 198 - separated from the armed forces under circumstances amounting to a dishonorable discharge from the armed forces; and (2) a resident of New Mexico at the time of entering or discharge from the armed forces or, in the alternative, a resident of New Mexico at the date of admission. B. Additionally, no more than twenty-five percent of the occupancy in the New Mexico state veterans' home shall consist of nonveterans from the following categories: (1) spouses or domestic partners; (2) surviving spouses or surviving domestic partners; and (3) gold star parents. C. Whenever a law, rule or regulation of the veterans' administration of the federal government or any other law permits the state to receive federal funds for the use and benefit of the New Mexico state veterans' home, upon acceptance of a veteran of the armed forces of the United States not meeting the requirements of Subsection A of this section, the board of trustees may adopt rules to authorize such veteran's acceptance." Section 126. Section 24-6B-2 NMSA 1978 (being Laws 2007, Chapter 323, Section 2) is amended to read: "24-6B-2. DEFINITIONS.--As used in the Jonathan Spradling Revised Uniform Anatomical Gift Act: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 199 - A. "adult" means an individual who is at least sixteen years of age; B. "agent" means an individual: (1) authorized to make health care decisions on the principal's behalf by a power of attorney for health care; or (2) expressly authorized to make an anatomical gift on the principal's behalf by any other record signed by the principal; C. "anatomical gift" means a donation of all or part of a human body to take effect after the donor's death for the purpose of transplantation, therapy, research or education; D. "decedent" means a deceased individual whose body or part is or may be the source of an anatomical gift. "Decedent" includes a stillborn infant and, subject to restrictions imposed by law other than the Jonathan Spradling Revised Uniform Anatomical Gift Act, a fetus but not including a fetus that is the subject of an induced abortion; E. "disinterested witness" means a witness other than the spouse, domestic partner, child, parent, sibling, grandchild, grandparent or guardian of the individual who makes, amends, revokes or refuses to make an anatomical gift, or another adult who exhibited special care and concern for the individual. "Disinterested witness" does not include a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 200 - person to which an anatomical gift could pass pursuant to Section [11 of the Jonathan Spradling Revised Uniform Anatomical Gift Act] 24-6B-11 NMSA 1978; F. "document of gift" means a donor card or other record used to make an anatomical gift. "Document of gift" includes a statement or symbol on a driver's license, identification card or donor registry; G. "donor" means an individual whose body or part is the subject of an anatomical gift; H. "donor registry" means a database that contains records of anatomical gifts and amendments to or revocations of anatomical gifts; I. "driver's license" means a license or permit issued by the motor vehicle division of the taxation and revenue department to operate a vehicle, whether or not conditions are attached to the license or permit; J. "eye bank" means a person that is licensed, accredited or regulated pursuant to federal or state law to engage in the recovery, screening, testing, processing, storage or distribution of human eyes or portions of human eyes; K. "guardian" means a person appointed by a court to make decisions regarding the support, care, education, health or welfare of an individual. "Guardian" does not include a guardian ad litem; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 201 - L. "hospital" means a facility licensed as a hospital pursuant to the law of any state or a facility operated as a hospital by the United States, a state or a subdivision of a state; M. "identification card" means an identification card issued by the motor vehicle division of the taxation and revenue department; N. "know" means to have actual knowledge; O. "minor" means an individual who is under eighteen years of age; P. "organ procurement organization" means a person designated by the secretary of the federal department of health and human services as an organ procurement organization; Q. "parent" means a parent whose parental rights have not been terminated; R. "part" means an organ, an eye or tissue of a human being. "Part" does not include the whole body; S. "person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality, or any other legal or commercial entity; T. "physician" means an individual authorized to practice medicine or osteopathy pursuant to the law of any underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 202 - state; U. "power of attorney for health care" includes an advance health-care directive as defined in the Uniform Health-Care Decisions Act; V. "procurement organization" means an eye bank, organ procurement organization or tissue bank; W. "prospective donor" means an individual who is dead or near death and has been determined by a procurement organization to have a part that could be medically suitable for transplantation, therapy, research or education. "Prospective donor" does not include an individual who has made a refusal; X. "reasonably available" means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift; Y. "recipient" means an individual into whose body a decedent's part has been or is intended to be transplanted; Z. "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; AA. "refusal" means a record created pursuant to Section [7 of the Jonathan Spradling Revised Uniform underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 203 - Anatomical Gift Act] 24-6B-7 NMSA 1978 that expressly states an intent to bar other persons from making an anatomical gift of an individual's body or part; BB. "sign" means, with the present intent to authenticate or adopt a record: (1) to execute or adopt a tangible symbol; or (2) to attach to or logically associate with the record an electronic symbol, sound or process; CC. "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States; DD. "technician" means an individual determined to be qualified to remove or process parts by an appropriate organization that is licensed, accredited or regulated pursuant to federal or state law. "Technician" includes an enucleator; EE. "tissue" means a portion of the human body other than an organ or an eye. "Tissue" does not include blood unless the blood is donated for the purpose of research or education; FF. "tissue bank" means a person that is licensed, accredited or regulated pursuant to federal or state law to engage in the recovery, screening, testing, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 204 - processing, storage or distribution of tissue; and GG. "transplant hospital" means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients." Section 127. Section 24-6B-9 NMSA 1978 (being Laws 2007, Chapter 323, Section 9) is amended to read: "24-6B-9. WHO MAY MAKE ANATOMICAL GIFT OF DECEDENT'S BODY OR PART.-- A. Subject to the provisions of Subsections B and C of this section and unless barred by Section [7 or 8 of the Jonathan Spradling Revised Uniform Anatomical Gift Act] 24-6B-7 or 24-6B-8 NMSA 1978, an anatomical gift of a decedent's body or part for purpose of transplantation, therapy, research or education may be made by any member of the following classes of persons who is reasonably available, in the order of priority listed: (1) an agent of the decedent at the time of death who could have made an anatomical gift pursuant to Subsection B of Section [4 of the Jonathan Spradling Revised Uniform Anatomical Gift Act] 24-6B-4 NMSA 1978 immediately before the decedent's death; (2) the spouse or domestic partner of the decedent unless legally separated or unless there is a pending action for annulment, divorce, dissolution of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 205 - marriage or domestic partnership or separation; (3) adult children of the decedent; (4) parents of the decedent; (5) adult siblings of the decedent; (6) adult grandchildren of the decedent; (7) grandparents of the decedent; (8) an adult who exhibited special care and concern for the decedent; (9) the persons who were acting as the guardians of the person of the decedent at the time of death; and (10) any other person having the authority to dispose of the decedent's body. B. If there is more than one member of a class listed in Paragraphs (1), (3), (4), (5), (6), (7) and (9) of Subsection A of this section entitled to make an anatomical gift, an anatomical gift may be made by a member of the class unless that member or a person to which the gift may pass pursuant to Section [11 of the Jonathan Spradling Revised Uniform Anatomical Gift Act] 24-6B-11 NMSA 1978 knows of an objection by another member of the class. If an objection is known, the gift may be made only by a majority of the members of the class who are reasonably available. C. A person may not make an anatomical gift if, at the time of the decedent's death, a person in a prior underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 206 - class pursuant to Subsection A of this section is reasonably available to make or to object to the making of an anatomical gift." Section 128. Section 24-7A-2 NMSA 1978 (being Laws 1995, Chapter 182, Section 2) is amended to read: "24-7A-2. ADVANCE HEALTH-CARE DIRECTIVES.-- A. An adult or emancipated minor, while having capacity, has the right to make his or her own health-care decisions and may give an individual instruction. The individual instruction may be oral or written; if oral, it [must] shall be made by personally informing a health-care provider. The individual instruction may be limited to take effect only if a specified condition arises. B. An adult or emancipated minor, while having capacity, may execute a power of attorney for health care, which may authorize the agent to make any health-care decision the principal could have made while having capacity. The power [must] shall be in writing and signed by the principal. The power remains in effect notwithstanding the principal's later incapacity under the Uniform Health-Care Decisions Act or Article 5 of the Uniform Probate Code. The power may include individual instructions. Unless related to the principal by blood, marriage, domestic partnership or adoption, an agent may not be an owner, operator or employee of a health-care institution at which the principal is underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 207 - receiving care. C. Unless otherwise specified in a power of attorney for health care, the authority of an agent becomes effective only upon a determination that the principal lacks capacity and ceases to be effective upon a determination that the principal has recovered capacity. D. Unless otherwise specified in a written advance health-care directive, a determination that an individual lacks or has recovered capacity or that another condition exists that affects an individual instruction or the authority of an agent shall be made according to the provisions of Section [11 of the Uniform Health-Care Decisions Act] 24-7A-11 NMSA 1978. E. An agent shall make a health-care decision in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent's determination of the principal's best interest. In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent. F. A health-care decision made by an agent for a principal is effective without judicial approval. G. A written advance health-care directive may include the individual's nomination of a guardian of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 208 - person." Section 129. Section 24-7A-3 NMSA 1978 (being Laws 1995, Chapter 182, Section 3, as amended) is amended to read: "24-7A-3. REVOCATION OF ADVANCE HEALTH-CARE DIRECTIVE.-- A. An individual, while having capacity, may revoke the designation of an agent either by a signed writing or by personally informing the supervising health-care provider. If the individual cannot sign, a written revocation [must] shall be signed for the individual and be witnessed by two witnesses, each of whom has signed at the direction and in the presence of the individual and of each other. B. An individual, while having capacity, may revoke all or part of an advance health-care directive, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke. C. A health-care provider, agent, guardian or surrogate who is informed of a revocation shall promptly communicate the fact of the revocation to the supervising health-care provider and to any health-care institution at which the patient is receiving care. D. The filing of a petition for or a decree of annulment, [divorce] dissolution of marriage or domestic partnership or legal separation revokes a previous underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 209 - designation of a spouse or domestic partner as agent unless otherwise specified in the decree or in a power of attorney for health care. A designation revoked solely by this subsection is revived by the individual's [remarriage] marriage to or entry into a domestic partnership with the former spouse or the former domestic partner, by a nullification of the [divorce] dissolution of marriage or domestic partnership, annulment or legal separation or by the dismissal or withdrawal, with the individual's consent, of a petition seeking annulment, [divorce] dissolution of marriage or domestic partnership or legal separation. E. An advance health-care directive that conflicts with an earlier advance health-care directive revokes the earlier directive to the extent of the conflict." Section 130. Section 24-7A-5 NMSA 1978 (being Laws 1995, Chapter 182, Section 5, as amended) is amended to read: "24-7A-5. DECISIONS BY SURROGATE.-- A. A surrogate may make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined according to the provisions of Section 24-7A-11 NMSA 1978 to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available. B. An adult or emancipated minor, while having capacity, may designate any individual to act as surrogate by underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 210 - personally informing the supervising health-care provider. In the absence of a designation or if the designee is not reasonably available, any member of the following classes of the patient's family who is reasonably available, in descending order of priority, may act as surrogate: (1) the spouse or domestic partner, unless legally separated or unless there is a pending petition for annulment, [divorce] dissolution of marriage or domestic partnership or legal separation; (2) an individual in a long-term relationship of indefinite duration with the patient in which the individual has demonstrated an actual commitment to the patient similar to the commitment of a spouse or domestic partner and in which the individual and the patient consider themselves to be responsible for each other's well-being; (3) an adult child; (4) a parent; (5) an adult brother or sister; or (6) a grandparent. C. If none of the individuals eligible to act as surrogate under Subsection B of this section is reasonably available, an adult who has exhibited special care and concern for the patient, who is familiar with the patient's personal values and who is reasonably available may act as surrogate. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 211 - D. A surrogate shall communicate [his] the surrogate's assumption of authority as promptly as practicable to the patient, to members of the patient's family specified in Subsection B of this section who can be readily contacted and to the supervising health-care provider. E. If more than one member of a class assumes authority to act as surrogate and they do not agree on a health-care decision and the supervising health-care provider is so informed, the supervising health-care provider shall comply with the decision of a majority of the members of that class who have communicated their views to the provider. If the class is evenly divided concerning the health-care decision and the supervising health-care provider is so informed, that class and all individuals having lower priority are disqualified from making the decision. F. A surrogate shall make a health-care decision in accordance with the patient's individual instructions, if any, and other wishes to the extent known to the surrogate. Otherwise, the surrogate shall make the decision in accordance with the surrogate's determination of the patient's best interest. In determining the patient's best interest, the surrogate shall consider the patient's personal values to the extent known to the surrogate. G. A health-care decision made by a surrogate for underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 212 - a patient shall not be made solely on the basis of the patient's preexisting physical or medical condition or preexisting or projected disability. H. A health-care decision made by a surrogate for a patient is effective without judicial approval. I. A patient, at any time, may disqualify any person, including a member of the patient's family, from acting as the patient's surrogate by a signed writing or by personally informing a health-care provider of the disqualification. A health-care provider who is informed by the patient of a disqualification shall promptly communicate the fact of disqualification to the supervising health-care provider and to any health-care institution at which the patient is receiving care. J. Unless related to the patient by blood, marriage, domestic partnership or adoption, a surrogate may not be an owner, operator or employee of a health-care institution at which the patient is receiving care. K. A supervising health-care provider may require an individual claiming the right to act as surrogate for a patient to provide a written declaration under penalty of perjury stating facts and circumstances reasonably sufficient to establish the claimed authority." Section 131. Section 24-7B-4 NMSA 1978 (being Laws 2006, Chapter 7, Section 4) is amended to read: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 213 - "24-7B-4. ADVANCE DIRECTIVE FOR MENTAL HEALTH TREATMENT.-- A. An adult or emancipated minor, while having capacity, has the right to make the [adult] adult's or emancipated minor's own mental health treatment decisions and may give an individual instruction. The individual instruction may be oral or written; if oral, it shall be made by personally informing a health care provider. The individual instruction may be limited to take effect only if a specified condition arises. B. An adult or emancipated minor, while having capacity, may execute a power of attorney for mental health treatment that may authorize the agent to make any mental health treatment decision the principal could have made while having capacity. The power of attorney for mental health treatment shall be in writing signed by the principal and witnessed pursuant to Subsections I and J of this section. The power of attorney for mental health treatment shall remain in effect notwithstanding the principal's later incapacity under the Mental Health Care Treatment Decisions Act or Article 5 of the Uniform Probate Code. The power of attorney for mental health treatment may include individual instructions. Unless related to the principal by blood, marriage, domestic partnership or adoption, an agent may not be an attending qualified health care professional or an underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 214 - employee of the qualified health care professional or an owner, operator or employee of a mental health treatment facility at which the principal is receiving care. C. Unless otherwise specified in a power of attorney for mental health treatment, the authority of an agent becomes effective only upon certification that the principal lacks capacity and ceases to be effective upon a determination that the principal has recovered capacity. D. Unless otherwise specified in a written advance directive for mental health treatment, written certification that an individual lacks or has recovered capacity or that another condition exists that affects an individual instruction or the authority of an agent shall be made according to the provisions of the Mental Health Care Treatment Decisions Act. E. An agent shall make a mental health treatment decision in accordance with the principal's individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent's determination of the principal's best interest. In determining the principal's best interest, the agent shall consider the principal's personal values to the extent known to the agent. F. A mental health treatment decision made by an agent for a principal is effective without judicial approval. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 215 - G. A written advance directive for mental health treatment may include the individual's nomination of a choice of guardian of the individual. H. The fact that an individual has executed an advance directive for mental health treatment shall not constitute an indication of mental illness. I. A written advance directive for mental health treatment is valid only if it is signed by the principal and a witness who is at least eighteen years of age and who attests that the principal: (1) is known to the witness; (2) signed the advance directive for mental health treatment in the witness' presence; (3) appears to have capacity; and (4) is not acting under duress, fraud or undue influence. J. For purposes of the advance directive for mental health treatment, the witness shall not be: (1) an agent of the principal; (2) related to the principal by blood, [or] marriage or domestic partnership; (3) entitled to any part of the principal's estate or have a claim against the principal's estate; (4) the attending qualified health care professional; or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 216 - (5) an owner, operator or employee of a mental health treatment facility at which the principal is receiving care or of any parent organization of the mental health treatment facility." Section 132. Section 24-7B-6 NMSA 1978 (being Laws 2006, Chapter 7, Section 6) is amended to read: "24-7B-6. REVOCATION OF ADVANCE DIRECTIVE FOR MENTAL HEALTH TREATMENT.-- A. An individual, while having capacity, may revoke the designation of an agent either by a signed writing or by personally informing the supervising health care provider. If the individual cannot sign, a written revocation shall be signed for the individual and be witnessed by two witnesses pursuant to Subsections I and J of Section [4 of the Mental Health Care Treatment Decisions Act] 24-7B-4 NMSA 1978, each of whom has signed at the direction of the individual and in the presence of the individual and each other. B. An individual, while having capacity, may revoke all or part of an advance directive for mental health treatment, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke. C. A mental health treatment provider, agent or guardian who is informed of a revocation shall promptly communicate the fact of the revocation to the supervising underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 217 - health care provider and to any mental health treatment facility at which the patient is receiving care. D. The filing of a petition for or a decree of annulment, [divorce] dissolution of marriage or domestic partnership or legal separation revokes a previous designation of a spouse or domestic partner as agent, unless otherwise specified in the decree or in a power of attorney for mental health treatment. A designation revoked solely by this subsection is revived by the individual's [remarriage] marriage to or entry into a domestic partnership with the former spouse or the former domestic partner, by a nullification of the [divorce] dissolution of marriage or domestic partnership, annulment or legal separation or by the dismissal or withdrawal, with the individual's consent, of a petition seeking annulment, [divorce] dissolution of marriage or domestic partnership or legal separation. E. An advance directive for mental health treatment that conflicts with an earlier advance directive for mental health treatment revokes the earlier directive to the extent of the conflict. F. Unless otherwise specified in the power of attorney for mental health treatment, an advance health-care directive pursuant to the Uniform Health-Care Decisions Act and an advance directive for mental health treatment shall be treated separately. A revocation of a power of attorney for underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 218 - mental health treatment shall not affect the validity of a power of attorney." Section 133. Section 24-9-1 NMSA 1978 (being Laws 1971, Chapter 14, Section 3, as amended) is amended to read: "24-9-1. STERILIZATION--CONSENT OF ABANDONING SPOUSE OR DOMESTIC PARTNER UNNECESSARY.--[Any] A person who is otherwise capable of consenting to medical treatment need not obtain the consent of [his] the person's spouse or domestic partner for [his] the person's voluntary medical sterilization if [such] the person has been abandoned by [his] that spouse or domestic partner." Section 134. Section 24-11-6.1 NMSA 1978 (being Laws 2003, Chapter 191, Section 2, as amended) is amended to read: "24-11-6.1. DECEASED MEMBERS OF INDIAN NATIONS, TRIBES OR PUEBLOS--CONSULTATION AND CERTIFICATION REQUIRED.-- A. The state medical investigator shall make reasonable efforts to determine if a deceased person is a member of a federally recognized Indian nation, tribe or pueblo. If a deceased person has been determined to be a member of a federally recognized Indian nation, tribe or pueblo, the state medical investigator shall use all due diligence to avoid an autopsy except when legally required due to possible criminal acts or omissions, an obscure cause of death or other reasons or pursuant to consent given according to the provisions of Section 24-12-4 NMSA 1978. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 219 - The state medical investigator shall use the least invasive means possible to satisfy the investigator's legal duties in conducting an autopsy. B. If the state medical investigator determines that an autopsy cannot be avoided, the investigator shall attempt to provide advance notice of the autopsy to the surviving spouse or surviving domestic partner or next of kin, or to the Indian nation, tribe or pueblo of the deceased. The state medical investigator shall provide documentation concerning the autopsy upon request of the surviving spouse or surviving domestic partner or next of kin, or if none is identified, to the Indian nation, tribe or pueblo of which the deceased was a member. C. If requested by the surviving spouse or surviving domestic partner or the next of kin, or if none is identified, by the Indian nation, tribe or pueblo through an official representative designated pursuant to Subsection E of this section, the state medical investigator shall permit a law enforcement officer of the Indian nation, tribe or pueblo of the deceased to be present during the autopsy. The law enforcement officer attending the autopsy may not interfere with the autopsy procedure and shall follow the health regulations governing autopsy procedures. D. After any legally required autopsy or postmortem examination has been conducted, the state medical underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 220 - investigator shall use all due diligence to consult with the surviving spouse or surviving domestic partner or next of kin of the deceased regarding the disposition of all of the deceased's remains. Unless other treatment of the remains is required by law, the state medical investigator shall replace all body parts and, if requested, shall provide written certification to the surviving spouse or surviving domestic partner or next of kin of the deceased that the investigator has replaced all body parts. E. The state medical investigator shall request that each Indian nation, tribe and pueblo located in New Mexico designate, and keep current the designation of, an official representative that the state medical investigator shall contact when it is necessary to contact a tribal representative regarding an autopsy or the disposition of the remains of a deceased member of the Indian nation, tribe or pueblo." Section 135. Section 24-12-4 NMSA 1978 (being Laws 1965, Chapter 86, Section 1, as amended) is amended to read: "24-12-4. POST-MORTEM EXAMINATIONS AND AUTOPSIES-- CONSENT REQUIRED.-- A. An autopsy or post-mortem examination may be performed on the body of a deceased person by a physician or surgeon whenever consent to the procedure has been given by: (1) written authorization signed by the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 221 - deceased during [his] the person's lifetime; (2) authorization of any person or on behalf of any entity whom the deceased designated in writing during [his] the person's lifetime to take charge of [his] the deceased's body for burial or other purposes; (3) authorization of the deceased's surviving spouse or surviving domestic partner; (4) authorization of an adult child, parent or adult brother or sister of the deceased if there is no surviving spouse or surviving domestic partner or if the surviving spouse or surviving domestic partner is unavailable, incompetent or has not claimed the body for burial after notification of the death of the decedent; (5) authorization of any other relative of the deceased if none of the persons enumerated in Paragraphs (2) through (4) of this subsection is available or competent to give authorization; or (6) authorization of the public official, agency or person having custody of the body for burial if none of the persons enumerated in Paragraphs (2) through (5) of this subsection is available or competent to give authorization. B. An autopsy or post-mortem examination shall not be performed under authorization given under the provisions of Paragraph (4) of Subsection A of this section underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 222 - by any one of the persons enumerated if, before the procedure is performed, any one of the other persons enumerated objects in writing to the physician or surgeon by whom the procedure is to be performed. C. An autopsy or post-mortem examination may be performed by a pathologist at the written direction of the district attorney or [his] the district attorney's authorized representative in any case in which the district attorney is conducting a criminal investigation. D. An autopsy or post-mortem examination may be performed by a pathologist at the direction of the state, district or deputy medical investigator when [he] the state, district or deputy medical investigator suspects the death was caused by a criminal act or omission or if the cause of death is obscure. E. For purposes of this section, "autopsy" means a post-mortem dissection of a dead human body in order to determine the cause, seat or nature of disease or injury and includes the retention of tissues customarily removed during the course of autopsy for evidentiary, identification, diagnosis, scientific or therapeutic purposes." Section 136. Section 24-12A-2 NMSA 1978 (being Laws 1993, Chapter 200, Section 2, as amended) is amended to read: "24-12A-2. NO WRITTEN INSTRUCTIONS--PRIORITY OF OTHERS TO DECIDE DISPOSITION.--If a decedent has left no written underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 223 - instructions regarding the disposition of [his] the decedent's remains, the following persons in the order listed shall determine the means of disposition, not to be limited to cremation, of the remains of the decedent: A. the surviving spouse or surviving domestic partner; B. a majority of the surviving adult children of the decedent; C. the surviving parents of the decedent; D. a majority of the surviving siblings of the decedent; E. an adult who has exhibited special care and concern for the decedent, who is aware of the decedent's views and desires regarding the disposition of [his] the decedent's body and who is willing and able to make a decision about the disposition of the decedent's body; or F. the adult person of the next degree of kinship in the order named by New Mexico law to inherit the estate of the decedent." Section 137. Section 24-14-13 NMSA 1978 (being Laws 1961, Chapter 44, Section 13, as amended) is amended to read: "24-14-13. BIRTH REGISTRATION.-- A. A certificate of birth for each live birth that occurs in this state shall be filed with the bureau or as otherwise directed by the state registrar within ten days underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 224 - after the birth and shall be registered if it has been completed and filed in accordance with this section. When a birth, however, occurs on a moving conveyance, a birth certificate shall be registered in this state and the place where the child is first removed shall be considered the place of birth. B. When a birth occurs in an institution, the person in charge of the institution or the person's designated representative shall obtain the personal data, prepare the certificate of birth, secure the signatures required and file it as directed in this section. The physician or other person in attendance shall certify the medical information required by the certificate of birth within ten working days after the birth in accordance with policies established by the institution where the birth occurred. The person in charge of the institution or the person's designee shall complete and sign the certificate of birth. C. When a birth occurs outside an institution, the certificate of birth shall be prepared and filed by one of the following in the indicated order of priority: (1) the physician in attendance at or immediately after the birth; (2) any other person in attendance at or immediately after the birth; or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 225 - (3) the father, the mother or, in the absence of the father and the inability of the mother, the person in charge of the premises where the birth occurred. D. If the mother was married or in a domestic partnership at the time of either conception or birth, the name of the husband or domestic partner shall be entered on the certificate of birth as the father of the child, unless paternity has been determined pursuant to Subsection F or G of this section or by a court, in which case the name of the father as determined pursuant to Subsection F or G of this section or by the court shall be entered. E. If the mother was not married or in a domestic partnership at the time of either conception or birth, but the mother and father have signed under penalty of perjury an acknowledgment of paternity on a form provided by the bureau pursuant to the New Mexico Uniform Parentage Act, the father's name, date of birth and social security number shall be entered on the acknowledgment of paternity. The name of the father shall not be entered on the certificate of birth without such a written acknowledgment of paternity signed under penalty of perjury by the mother and the person to be named as the father, unless a determination of paternity has been made by a court, in which case the name of the father as determined by the court shall be entered. F. At or before the birth of a child to [an underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 226 - unmarried] a woman who is neither married nor in a domestic partnership, the person in charge of the institution, a designated representative, the attending physician or midwife shall: (1) provide an opportunity for the child's mother and father to sign under penalty of perjury an acknowledgment of paternity on a form provided by the bureau pursuant to the New Mexico Uniform Parentage Act. The completed acknowledgment of paternity shall be filed with the bureau. The acknowledgment shall contain or have attached to it: (a) a statement by the mother consenting to the assertion of paternity; (b) a statement by the father that he is the father of the child; (c) written information, furnished by the human services department, explaining the implications of signing, including legal parental rights and responsibilities; and (d) the social security numbers of both parents; and (2) provide written information, furnished by the human services department, to the mother and father, regarding the benefits of having the child's paternity established and of the availability of paternity underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 227 - establishment services and child support enforcement services. G. If a [married] mother who is married or in a domestic partnership claims that her husband or domestic partner is not the father of the child, the husband or domestic partner signs under penalty of perjury a denial of paternity on a form provided by the bureau pursuant to the New Mexico Uniform Parentage Act and [the non-husband] a person who is not the husband or domestic partner of the mother agrees that he is the father, an acknowledgment of paternity may be signed under penalty of perjury by the mother and the [non-husband] person who is not the husband or domestic partner of the mother. Upon filing the acknowledgment of paternity and the denial of paternity with the bureau, the name of the [non-husband] person who is not the husband or domestic partner of the mother shall be entered on the certificate of birth as the father. H. Pursuant to an interagency agreement for proper reimbursement, the bureau shall make available to the human services department the birth certificate, the mother's and father's social security numbers and paternity acknowledgments or denials. The human services department shall use these records only in conjunction with its duties as the state IV-D agency responsible for the child support program under Title IV-D of the federal Social Security Act. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 228 - I. Each party shall be provided with copies of any acknowledgment of paternity and any related denial of paternity. J. The forms of acknowledgment of paternity and denial of paternity furnished by the bureau shall comply with the requirements of the New Mexico Uniform Parentage Act and shall be provided in English and in Spanish." Section 138. Section 24-14-25 NMSA 1978 (being Laws 1961, Chapter 44, Section 23, as amended) is amended to read: "24-14-25. CORRECTION AND AMENDMENT OF VITAL RECORDS.-- A. A certificate or report registered under the Vital Statistics Act may be amended only in accordance with that act and regulations adopted by the department pursuant to that act to protect the integrity and accuracy of vital records and health statistics. B. Upon receipt of a certified copy of a court order changing the name of a person born in this state and upon request of the person or the person's parent, guardian or legal representative, the state registrar shall amend the original certificate of birth to reflect the new name. C. Upon request and receipt of an [acknowledgement] acknowledgment of paternity signed under penalty of perjury by both parents of a child born to [an unmarried] a mother who is not married or in a domestic partnership or, in the case of a married mother or a mother underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 229 - in a domestic partnership, upon receipt of an acknowledgment of paternity signed under penalty of perjury by the mother and the [non-husband] person who is not her husband or domestic partner and of a denial of paternity signed under penalty of perjury by the husband or domestic partner, the state registrar shall amend a certificate of birth to show the paternity if paternity is not shown on the birth certificate. The certificate of birth shall not be marked "amended". D. Upon receipt of a statement signed under penalty of perjury by the person in charge of an institution or from the attending physician indicating that the sex of an individual born in this state has been changed by surgical procedure, together with a certified copy of an order changing the name of the person, the certificate of birth of the individual shall be amended as prescribed by regulation. E. When an applicant does not submit the minimum documentation required in the regulations for amending a vital record or when the state registrar has reasonable cause to question the validity or adequacy of the applicant's statements or statements made under penalty of perjury or the documentary evidence and if the deficiencies are not corrected, the state registrar shall not amend the vital records and shall advise the applicant of the reason for this action. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 230 - F. A certificate or report that is amended under this section shall be marked "amended", except as otherwise provided in Subsection C of this section. The date of the amendment and a summary description of the evidence submitted in support of the amendment shall be endorsed on or made a part of the record. The department shall prescribe by regulation the conditions under which additions or minor corrections may be made to certificates or records within one year after the date of the event without the certificate or record being marked "amended"." Section 139. Section 24-17-5 NMSA 1978 (being Laws 1985, Chapter 102, Section 5, as amended) is amended to read: "24-17-5. CONTRACT INFORMATION.-- A. A continuing care contract shall be written in clear and understandable language. B. A continuing care contract shall, at a minimum: (1) describe the community's admission policies, including age, health status and minimum financial requirements, if any; (2) describe the health and financial conditions required for a person to continue to be a resident; (3) describe the circumstances under which the resident will be permitted to remain in the community in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 231 - the event of possible financial difficulties of the resident; (4) list the total consideration paid, including donations, entrance fees, subscription fees, periodic fees and other fees paid or payable; provided, however, that a provider cannot require a resident to transfer all the resident's assets to the provider or community as a condition for providing continuing care and the provider shall reserve the right to charge periodic fees; (5) describe in detail all items of service to be received by the resident such as food, shelter, medical care, nursing care and other health services and whether services will be provided for a designated time period or for life; (6) provide as an addendum to the contract a description of items of service, if any, that are available to the resident but are not covered in the entrance or monthly fee; (7) specify taxes and utilities, if any, that the resident must pay; (8) specify that deposits or entrance fees paid by or for a resident shall be held in trust for the benefit of the resident in a federally insured New Mexico bank until the resident has occupied [his] the resident's unit or the resident's contract cancellation period has ended; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 232 - (9) state the terms under which a continuing care contract may be canceled by the resident or the community and the basis for establishing the amount of refund of the entrance fee; (10) state the terms under which a continuing care contract is canceled by the death of the resident and the basis for establishing the amount of refund, if any, of the entrance fee; (11) state when fees will be subject to periodic increases and what the policy for increases will be; provided, however, that the provider shall give advance notice of not less than thirty days to the residents before the change becomes effective and increases shall be based upon economic necessity, the reasonable cost of operating the community, the cost of care and a reasonable return on investment as defined by rules promulgated by the aging and long-term services department no later than January 31, 2006; (12) state the entrance fee and periodic fees that will be charged if the resident marries or enters into a domestic partnership while living in the community, the terms concerning the entry of a spouse or domestic partner to the community and the consequences if the spouse or domestic partner does not meet the requirements for entry; (13) indicate funeral and burial services that are not furnished by the provider; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 233 - (14) state the rules and regulations of the provider then in effect and state the circumstances under which the provider claims to be entitled to have access to the resident's unit; (15) list the resident's and provider's respective rights and obligations as to any real or personal property of the resident transferred to or placed in the custody of the provider; (16) describe the rights of the residents to form a residents' association and the participation, if any, of the association in the community's decision-making process; (17) describe the living quarters purchased by or assigned to the resident; (18) provide under what conditions, if any, the resident may assign the use of a unit to another; (19) include the policy and procedure with regard to changes in accommodations due to an increase or decrease in the number of persons occupying an individual unit; (20) state the conditions upon which the community may sublet or relet a resident's unit; (21) state, in the event of voluntary absence from the community for an extended period of time by the resident, what fee adjustments, if any, will be made; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 234 - (22) include the procedures to be followed when the provider temporarily or permanently changes the resident's accommodations, either within the community or by transfer to a health facility; provided that the contract shall state that such changes in accommodations shall only be made to protect the health or safety of the resident or the general and economic welfare of all other residents of the community; (23) if the community includes a nursing facility, describe the admissions policies and what will occur if a nursing facility bed is not available at the time it is needed; (24) describe, if the resident is offered a priority for nursing facility admission at a facility that is not owned by the community, with which nursing facility the formal arrangement is made and what will occur if a nursing facility bed is not available at the time it is needed; (25) include the policy and procedures for determining under what circumstances a resident will be considered incapable of independent living and will require a permanent move to a nursing facility. The contract shall also state who will participate in the decision for permanent residency in the nursing facility and shall provide that the resident shall have an advocate involved in that decision; provided that if the resident has no family member, attorney, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 235 - guardian or other responsible person to act as the resident's advocate, the provider shall request the local office of the human services department to serve as advocate; (26) specify the types of insurance, if any, the resident must maintain, including medicare, other health insurance and property insurance; (27) specify the circumstances, if any, under which the resident will be required to apply for medicaid, public assistance or any other public benefit programs; (28) state, in bold type of not less than twelve-point type on the front of the contract, that a contract for continuing care may present a significant financial risk and that a person considering a continuing care contract should consult with an attorney and with a financial advisor concerning the advisability of pursuing continuing care; provided, however, failure to consult with an attorney or financial advisor shall not be raised as a defense to bar recovery for a resident in any claims arising under the provisions of the Continuing Care Act; (29) state, in bold type of not less than twelve-point type on the front of the contract, that nothing in the contract or the Continuing Care Act should be construed to constitute approval, recommendation or endorsement of any continuing care community by the state of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 236 - New Mexico; (30) state in immediate proximity to the space reserved in the contract for the signature of the resident in bold type of not less than twelve-point type the following: "You, the buyer, may cancel this transaction at any time prior to midnight of the seventh day after the date of this transaction. See the attached notice of cancellation form for an explanation of this right."; and (31) contain a completed form in duplicate, captioned "Notice of Cancellation", which shall be attached to the contract and easily detachable, and which shall contain in twelve-point boldface type the following information and statements in the same language as that used in the contract. "NOTICE OF CANCELLATION Date: ____________________________ (enter date of transaction) You may cancel this transaction without any penalty or obligation within seven days from the above date. If you cancel, any payments made by you under the contract or sale and any negotiable instrument executed by you will be returned within ten business days following receipt by the provider of your cancellation notice, and any security interest or lien arising out of the transaction will be underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 237 - canceled. To cancel this transaction, deliver a signed and dated copy of this cancellation notice or any other written notice, or send a telegram, to: ____________________________________ (Name of Provider) at _________________________________________________________ (Address of Provider's Place of Business) not later than midnight of _____________________ (Date) I hereby cancel this transaction. __________________________________________________ (Buyer's Signature) ________________________ (Date)"." Section 140. Section 27-1-11 NMSA 1978 (being Laws 1997, Chapter 237, Section 16) is amended to read: "27-1-11. EXPEDITED PROCEDURE.--The state Title IV-D agency shall have the authority to take the following actions relating to establishment of paternity or to establishment, modification or enforcement of support orders, without the necessity of obtaining an order from any other judicial or administrative tribunal, and to recognize and enforce the authority of state Title IV-D agencies of other states to take the following actions: A. to order genetic testing for the purpose of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 238 - paternity establishments; B. to subpoena any financial or other information needed to establish, modify or enforce a support order and to impose penalties for failure to respond to such a subpoena. A subpoena issued by the state Title IV-D agency under this section shall be served upon the person to be subpoenaed or, at the option of the secretary of human services or the secretary's authorized representative, by certified mail addressed to the person at [his] the person's last known address. The service of the subpoena shall be at least ten days prior to the required production of the information. If the subpoena is served by certified mail, proof of service is the affidavit of mailing. After service of a subpoena upon a person, if the person neglects or refuses to comply with the subpoena, the state Title IV-D agency may apply to the district court of the county where the subpoena was served or the county where the subpoena was responded to for an order compelling compliance. Failure of the person to comply with the district court's order shall be punishable as contempt; C. to require all entities in the state, including for-profit, nonprofit and governmental employers, to provide promptly, in response to a request by the state Title IV-D agency of that or any other state administering a program under this part, information on the employment compensation and benefits of any person employed by such underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 239 - entity as an employee or contractor and to sanction failure to respond to any such request; D. to obtain access, subject to safeguards on privacy and information security and subject to the nonliability of entities that afford such access, to information contained in the following records, including automated access in the case of records maintained in automated databases: (1) records of other states and local government agencies, including: (a) vital statistics, including records of marriage or domestic partnership, birth and [divorce] dissolution of marriage or domestic partnership; (b) state and local tax and revenue records, including information on residence address, employer, income and assets; (c) records concerning real and titled personal property; (d) records of occupational and professional licenses and records concerning the ownership and control of corporations, partnerships and other business entities; (e) employment security records; (f) records of agencies administering public assistance programs; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 240 - (g) records of the motor vehicle division of the taxation and revenue department; and (h) corrections records; and (2) certain records held by private entities with respect to persons who owe or are owed support, or against or with respect to whom a support obligation is sought, consisting of: (a) the names and addresses of such persons and the names and addresses of the employers of such persons, as appearing in customer records of public utilities and cable television companies, pursuant to an administrative subpoena; and (b) information, including information on assets and liabilities, on such individuals held by financial institutions; E. in cases in which support is subject to an assignment in order to comply with a requirement imposed pursuant to temporary assistance for needy families or medicaid, or to a requirement to pay through the state disbursement unit established pursuant to Section 454B of the Social Security Act, upon providing notice to obligor and obligee to direct the obligor or other payor to change the payee to the appropriate government entity; F. to order income withholding; G. in cases in which there is a support underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 241 - arrearage, to secure assets to satisfy the arrearage by: (1) intercepting or seizing periodic or lump-sum payments from: (a) a state or local agency, including unemployment compensation, workers' compensation and other benefits; and (b) judgments, settlements and lotteries; (2) attaching and seizing assets of the obligor held in financial institutions; (3) attaching public and private retirement funds; and (4) imposing liens and, in appropriate cases, to force sale of property and distribution of proceeds; H. for the purpose of securing overdue support, to increase the amounts for arrearages, subject to such conditions or limitations as the state Title IV-D agency may provide; I. [the expedited] to expedite procedures [required shall include], including the following rules and authority, applicable with respect to all proceedings to establish paternity or to establish, modify or enforce support orders: (1) each party to any paternity or child underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 242 - support proceeding is required, subject to privacy safeguards, to file with the tribunal and the state case registry upon entry of an order, and to update, as appropriate, information on location and identity of the party, including social security number, residential and mailing addresses, telephone number and driver's license number, and name, address and telephone number of employer; and (2) in any subsequent child support enforcement action between the parties, upon sufficient showing that diligent effort has been made to ascertain the location of such a party, the tribunal may deem state due process requirements for notice and service of process to be met with respect to the party upon delivery of written notice to the most recent residential or employer address filed with the tribunal; J. to adopt procedures under which: (1) the state agency and administrative or judicial tribunal with authority to hear child support and paternity cases [exerts] may exert statewide jurisdiction over the parties; and (2) in a state in which orders are issued by courts or administrative tribunals, a case may be transferred between local jurisdictions in the state without need for any additional filing by the petitioner, or service of process underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 243 - upon the respondent, to retain jurisdiction over the parties; and K. to recognize that the authority of the Title IV-D agency with regard to Subsections A through J of this section shall be subject to due process safeguards, including, as appropriate, requirements for notice, opportunity to contest the action and opportunity for an appeal on the record to an independent administrative or judicial tribunal. Such due process safeguards shall be developed and implemented by the Title IV-D agency in accordance with the administrative office of the courts and other affected agencies and individuals consistent with current policies and procedures for implementation of the human services department's regulations." Section 141. Section 27-2-12.7 NMSA 1978 (being Laws 1980, Chapter 86, Section 1) is amended to read: "27-2-12.7. MEDICAID--HUMAN SERVICES DEPARTMENT EMPLOYEES--STANDARDS OF CONDUCT--ENFORCEMENT.-- A. As used in this section: (1) "business" means a corporation, partnership, sole proprietorship, firm, organization or individual carrying on a business; (2) "department" means the human services department; (3) "employee" means [any] a person who has underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 244 - been appointed to or hired for [any] a department office connected with the administration of medicaid funds and who receives compensation in the form of salary; (4) "employee with responsibility" means an employee who is directly involved in or has a significant part in the medicaid decision-making, regulatory, procurement or contracting process; and (5) "financial interest" means an interest held by an individual, [his] the individual's spouse or domestic partner or minor child [which] that is: (a) an ownership interest in business; or (b) [any] an employment or prospective employment for which negotiations have already begun. B. No employee with responsibility shall, for twenty-four months following the date on which [he] the employee ceases to be an employee, act as agent or attorney for [any other] another person or business in connection with a judicial or administrative proceeding, application, ruling, contract, claim or other matter relating to the medicaid program with respect to which the employee made an investigation, rendered [any] a ruling or was otherwise substantially and directly involved during the last year [he] the employee was an employee and [which] that was actually pending under [his] the employee's responsibility within that underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 245 - period. C. No department secretary, income support division director or medical assistance [bureau chief] division director or their deputies shall, for twelve months following the date on which [he] that person ceases to be an employee, participate [in any manner] with respect to a judicial or administrative proceeding, application, ruling, contract, claim or other matter relating to the medicaid program and pending before the department. D. No employee with responsibility shall participate [in any manner] with respect to a judicial or administrative proceeding, application, ruling, contract, claim or other matter relating to the medicaid program and involving [his] the employee's spouse or domestic partner, minor child or [any] a business in which [he] the employee has a financial interest unless prior to [such] the participation: (1) full disclosure of [his] the employee's relationship or financial interest is made in writing to the secretary of the department; and (2) a written determination is made by the secretary that the disclosed relationship or financial interest is too remote or inconsequential to affect the integrity of the services of the employee. E. Violation of any of the provisions of this underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 246 - section by an employee is grounds for dismissal, demotion or suspension. A former employee who violates [any of the provisions] a provision of this section [shall be] is subject to assessment by the department of a civil money penalty of two hundred fifty dollars ($250) for each violation. The department shall promulgate regulations to provide for an administrative appeal of any assessment imposed." Section 142. Section 27-2-23 NMSA 1978 (being Laws 1969, Chapter 232, Section 1, as amended) is amended to read: "27-2-23. THIRD PARTY LIABILITY.-- A. The income support division of the department shall make reasonable efforts to ascertain any legal liability of third parties who are or may be liable to pay all or part of the medical cost of injury, disease or disability of an applicant for or recipient of medical assistance pursuant to the provisions of Chapter 27 NMSA 1978. B. When the department makes medical assistance payments on behalf of a recipient, the department is subrogated to any right of the recipient against a third party for recovery of medical expenses to the extent that the department has made payment. C. Health insurers, including self-insured plans, group health plans, service benefit plans, managed care organizations, pharmacy benefit managers or other parties, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 247 - that are, by statute, contract or agreement, legally responsible for payment of a claim for a health care item or service, as a condition of doing business with New Mexico, shall: (1) provide, with respect to individuals who are eligible for or are provided medical assistance under the medicaid program, upon the request of the state, information to determine during what period the individual, the individual's spouse or domestic partner or the individual's dependents may be, or may have been, covered by a health insurer and the nature of the coverage provided by the health insurer, including the name, address and identifying number of the plan; (2) accept New Mexico's right of recovery and the assignment to New Mexico of any right of an individual or other entity to payment from the party for an item or service for which payment has been made under the medicaid program; (3) respond to any inquiry by New Mexico regarding a claim for payment for any health care item or service that is submitted no later than three years after the date of the provision of such health care item or service; and (4) agree not to deny a claim submitted by New Mexico solely on the basis of the date of submission of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 248 - the claim by the provider, the type of the claim form or a failure to present proper documentation at the point-of-sale that is the basis of the claim, if: (a) the claim is submitted by New Mexico within the three-year period beginning on the date on which the item or service was furnished; and (b) any action by New Mexico to enforce its rights with respect to such claim is commenced within six years of New Mexico's submission of such claim. D. Nothing in this section shall be construed to preclude the application of common law principles in determining equitable reimbursement from any third-party source for New Mexico or a health insurer, including self-insured plans, group health plans, service benefit plans, managed care organizations, pharmacy benefit managers or other parties." Section 143. Section 27-2-27 NMSA 1978 (being Laws 1981, Chapter 90, Section 1, as amended) is amended to read: "27-2-27. SINGLE STATE AGENCY--POWERS AND DUTIES.-- A. The department is designated as the single state agency for the enforcement of child and spousal support obligations pursuant to Title IV-D of the federal act and for the enforcement of domestic partner support with the following duties and powers to: (1) establish the paternity of a child in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 249 - the case of the child born out of wedlock or out of a domestic partnership with respect to whom an assignment of support rights has been executed in favor of the department; (2) establish an order of support for children receiving aid to families with dependent children and, at the option of the department, for the spouse or domestic partner or former spouse or former domestic partner with whom such children are living, but only if a support obligation has been established with respect to such spouse or domestic partner or former spouse or former domestic partner, for whom no order of support currently exists and seek modification, based upon the noncustodial parent's ability to pay, of existing orders in which the support order is inadequate to properly care for the child and the spouse or domestic partner or former spouse or former domestic partner with whom the child is living; (3) enforce as the real party in interest any existing order for the support of children who are receiving aid to families with dependent children or of the spouse or domestic partner or former spouse or former domestic partner with whom such children are living; (4) provide services to non-aid families with dependent children in the establishment and enforcement of paternity and child support obligations, including locating the absent parent. For these services, the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 250 - department is authorized to establish and collect fees, costs and charges permitted or required by federal law or by regulations adopted pursuant to that federal law; and (5) adopt regulations for the disposition of unclaimed child, spousal, domestic partner or medical support payments. B. In all cases handled by the department pursuant to the provisions of this section, the child support enforcement division or an attorney employed by the division represent the department, to the exclusion of any other party, in establishing, modifying and enforcing support obligations. C. An attorney employed to provide the Title IV-D services represents only the department's interests, and no attorney-client relationship shall exist between the attorney and another party. D. The department shall, at the time an application for child support services is made, inform the applicant that neither the Title IV-D agency nor the attorney who provides services under this section is the applicant's attorney and that the attorney who provides services under this section shall not provide legal representation to the applicant. E. The department may initiate an action or may intervene in an action involving child support. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 251 - F. The attorney employed by the department pursuant to this section shall not act as a guardian ad litem for the applicant. G. A court shall not disqualify the department in a legal action filed pursuant to the Support Enforcement Act of the federal Social Security Act because the department has previously provided services to a party whose interests are now adverse to the relief requested." Section 144. Section 27-2-28 NMSA 1978 (being Laws 1981, Chapter 90, Section 2, as amended) is amended to read: "27-2-28. LIABILITY FOR REPAYMENT OF PUBLIC ASSISTANCE.-- A. In cases where the department has provided cash assistance to children in a household, the court shall award judgment in favor of the department and against the noncustodial parents of the children for child support, calculated pursuant to Section 40-4-11.1 NMSA 1978, for all months in which the children received cash assistance benefits. B. Equitable defenses available to the noncustodial parent in claims by the custodian for retroactive support or past due support shall not operate to deprive the department of its right to request retroactive support or past due support for months during which the noncustodial parent's children received cash assistance underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 252 - benefits. C. Amounts of support collected that are in excess of the amounts specified in Subsections A and B of this section shall be paid by the department to the custodian of the child. D. No agreement between any custodian of a child and a parent of that child, either relieving the parent of any duty of child or spousal or domestic partner support or responsibility or purporting to settle past, present or future support obligations, either as a settlement or prepayment, shall act to reduce or terminate any rights of the department to recover from that parent for support provided, unless the department has consented to the agreement in writing. E. The noncustodial parent shall be given credit for any support actually provided, including housing, clothing, food or funds paid prior to the entry of any order for support. The noncustodial parent has the burden to prove that the noncustodial parent has provided any support. F. An application for public assistance by any person constitutes an assignment by operation of law of any support rights the person is entitled to during the time the person's household receives public assistance, whether the support rights are owed to the applicant or to any family member for whom the applicant is applying for or receiving underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 253 - assistance. The assignment includes all support rights that accrue as long as the applicant receives public assistance. G. By operation of law, an assignment to the department of any and all rights of an applicant for or recipient of medical assistance under the medicaid program in New Mexico or supplemental security income through the social security administration: (1) is deemed to be made of: (a) any payment for medical care from any person, firm or corporation, including an insurance carrier; and (b) any recovery for personal injury, whether by judgment or contract for compromise or settlement; (2) shall be effective to the extent of the amount of medical assistance actually paid by the department under the medicaid program; and (3) shall be effective as to the rights of any other individuals who are eligible for medical assistance and whose rights can legally be assigned by the applicant or recipient. An applicant or recipient is required to cooperate fully with the department in its efforts to secure the assignment and to execute and deliver any instruments and papers deemed necessary to complete the assignment by the department." Section 145. Section 27-2A-7 NMSA 1978 (being Laws underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 254 - 1994, Chapter 87, Section 7) is amended to read: "27-2A-7. RESTRICTIONS ON RECOVERY FROM ESTATES.--Any recovery from an estate may be made only after the death of the decedent's surviving spouse or surviving domestic partner, if any, and only at a time when the decedent has no surviving child who is less than twenty-one years of age or is blind or disabled as defined in 42 U.S.C. 1383C." Section 146. Section 27-2B-5 NMSA 1978 (being Laws 1998, Chapter 8, Section 5 and Laws 1998, Chapter 9, Section 5, as amended by Laws 2007, Chapter 46, Section 18 and by Laws 2007, Chapter 350, Section 3) is amended to read: "27-2B-5. WORK REQUIREMENTS--WORK PARTICIPATION RATES.-- A. The following qualify as work activities: (1) unsubsidized employment, including self- employment; (2) subsidized private sector employment, including self-employment; (3) subsidized public sector employment; (4) work experience; (5) on-the-job training; (6) job search and job readiness; (7) community service programs; (8) vocational education; (9) job skills training activities directly underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 255 - related to employment; (10) education directly related to employment; (11) satisfactory attendance at a secondary school or course of study leading to a certificate of general equivalency in the case of a participant who has not completed secondary school or received such a certificate; and (12) the provision of child care services to a participant who is participating in a community service program. B. The department shall recognize community service programs and job training programs that are operated by an Indian nation, tribe or pueblo. C. The department may not require a participant to work more than four hours per week over the work requirement rate set pursuant to the federal act. D. The department shall require a parent, caretaker or other adult who is a member of a benefit group to engage in a work activity. E. Where best suited for the participant to address barriers, the department may require the following work activities: (1) participating in parenting classes, money management classes or life skills training; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 256 - (2) participating in a certified alcohol or drug addiction program; (3) in the case of a homeless benefit group, finding a home; (4) in the case of a participant who is a victim of domestic violence residing in a domestic violence shelter or receiving counseling or treatment or participating in criminal justice activities directed at prosecuting the domestic violence perpetrator for no longer than twenty-four weeks; and (5) in the case of a participant who does not speak English, participating in a course in English as a second language. F. Subject to the availability of funds, the department in cooperation with the [labor] workforce solutions department, Indian affairs department and other appropriate state agencies may develop projects to provide for the placement of participants in work activities, including the following: (1) participating in unpaid internships with private and government entities; (2) refurbishing publicly assisted housing; (3) volunteering at a head start program or a school; (4) weatherizing low-income housing; and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 257 - (5) restoring public sites and buildings, including monuments, parks, fire stations, police buildings, jails, libraries, museums, auditoriums, convention halls, hospitals, buildings for administrative offices and city halls. G. If a participant is engaged in full-time vocational education studies or an activity set out in Paragraphs (9) through (11) of Subsection A of this section, the participant shall engage in another work activity at the same time. Additionally, for two-parent families that receive federally funded child-care assistance, the participant's spouse or domestic partner shall engage in a work activity set out in Paragraphs (1) through (5) or (7) of Subsection A of this section unless the participant suffers from a temporary or complete disability that bars the participant from engaging in a work activity or the participant is barred from engaging in a work activity because the participant provides sole care for a [disabled] person with a disability. H. A participant engaged in vocational education studies shall make reasonable efforts to obtain a loan, scholarship, grant or other assistance to pay for costs and tuition, and the department shall disregard those amounts in the eligibility determination. I. For as long as the described conditions exist, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 258 - the following are exempt from the work requirement: (1) a participant barred from engaging in a work activity because the participant has a temporary or permanent disability; (2) a participant over age sixty; (3) a participant barred from engaging in a work activity because the participant provides the sole care for a person with a disability; (4) a single custodial parent caring for a child less than twelve months old for a lifetime total of twelve months; (5) a single custodial parent caring for a child under six years of age if the parent is unable to obtain child care for one or more of the following reasons: (a) unavailability of appropriate child care within a reasonable distance from the parent's home or work as defined by the children, youth and families department; (b) unavailability or unsuitability of informal child care by a relative under other arrangements as defined by the children, youth and families department; or (c) unavailability of appropriate and affordable formal child-care arrangements as defined by the children, youth and families department; (6) a pregnant woman during her last underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 259 - trimester of pregnancy; (7) a participant prevented from working by a temporary emergency or a situation that precludes work participation for thirty days or less; (8) a participant who demonstrates by reliable medical, psychological or mental reports, court orders or police reports that family violence or threat of family violence effectively bars the participant from employment; and (9) a participant who demonstrates good cause of the need for the exemption. J. As a condition of the exemptions identified in Subsection I of this section, the department may establish participation requirements specific to the participant's condition or circumstances, such as substance abuse services, mental health services, domestic violence services, pursuit of disability benefits, job readiness or education directly related to employment. The activities are established to improve the participant's capacity to improve income and strengthen family support." Section 147. Section 27-4-2 NMSA 1978 (being Laws 1973, Chapter 311, Section 2, as amended) is amended to read: "27-4-2. DEFINITIONS.--As used in the Special Medical Needs Act: A. "department" or "division" means the income underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 260 - support division of the human services department; B. "board" means the division; C. "aged person" means a person who has attained the age of sixty-five years and does not have a spouse or domestic partner financially able, according to regulations of the division, to furnish support; D. "person with a disability" means a person who has attained the age of eighteen years and is determined to have a permanent and total disability, according to regulations of the division; and E. "blind person" means a person who is determined to be blind according to regulations of the division." Section 148. Section 27-5-4 NMSA 1978 (being Laws 1965, Chapter 234, Section 4, as amended) is amended to read: "27-5-4. DEFINITIONS.--As used in the Indigent Hospital and County Health Care Act: A. "ambulance provider" or "ambulance service" means a specialized carrier based within the state authorized under provisions and subject to limitations as provided in individual carrier certificates issued by the public regulation commission to transport persons alive, dead or dying en route by means of ambulance service. The rates and charges established by public regulation commission tariff shall govern as to allowable cost. Also included are air underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 261 - ambulance services approved by the board. The air ambulance service charges shall be filed and approved pursuant to Subsection D of Section 27-5-6 NMSA 1978 and Section 27-5-11 NMSA 1978; B. "board" means a county indigent hospital and county health care board; C. "indigent patient" means a person to whom an ambulance service, a hospital or a health care provider has provided medical care, ambulance transportation or health care services and who can normally support [himself] the person's self and [his] the person's dependents on present income and liquid assets available to [him] the person but, taking into consideration this income and those assets and [his] the person's requirement for other necessities of life for [himself] the person and [his] the person's dependents, is unable to pay the cost of the ambulance transportation or medical care administered or both. If provided by resolution of a board, it shall not include any person whose annual income together with [his] the person's spouse's or domestic partner's annual income totals an amount that is fifty percent greater than the per capita personal income for New Mexico as shown for the most recent year available in the survey of current business published by the United States department of commerce. Every board that has a balance remaining in the fund at the end of a given fiscal year shall underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 262 - consider and may adopt at the first meeting of the succeeding fiscal year a resolution increasing the standard for indigency. The term "indigent patient" includes a minor who has received ambulance transportation or medical care or both and whose parent or the person having custody of that minor would qualify as an indigent patient if transported by ambulance, admitted to a hospital for care or treated by a health care provider; D. "hospital" means a general or limited hospital licensed by the department of health, whether nonprofit or owned by a political subdivision, and may include by resolution of a board the following health facilities if licensed or, in the case of out-of-state hospitals, approved by the department of health: (1) for-profit hospitals; (2) state-owned hospitals; or (3) licensed out-of-state hospitals where treatment provided is necessary for the proper care of an indigent patient when that care is not available in an in-state hospital; E. "cost" means all allowable costs of providing health care services, to the extent determined by resolution of a board, for an indigent patient. Allowable costs shall be based on medicaid fee-for-service reimbursement rates for hospitals, licensed medical doctors and osteopathic underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 263 - physicians; F. "fund" means a county indigent hospital claims fund; G. "medicaid eligible" means a person who is eligible for medical assistance from the department; H. "county" means a county except a class A county with a county hospital operated and maintained pursuant to a lease with a state educational institution named in Article 12, Section 11 of the constitution of New Mexico; I. "department" means the human services department; J. "sole community provider hospital" means: (1) a hospital that is a sole community provider hospital under the provisions of the federal medicare guidelines; or (2) an acute care general hospital licensed by the department of health that is qualified, pursuant to rules adopted by the state agency primarily responsible for the medicaid program, to receive distributions from the sole community provider fund; K. "drug rehabilitation center" means an agency of local government, a state agency, a private nonprofit entity or combination thereof that operates drug abuse rehabilitation programs that meet the standards and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 264 - requirements set by the department of health; L. "alcohol rehabilitation center" means an agency of local government, a state agency, a private nonprofit entity or combination thereof that operates alcohol abuse rehabilitation programs that meet the standards set by the department of health; M. "mental health center" means a not-for-profit center that provides outpatient mental health services that meet the standards set by the department of health; N. "health care provider" means: (1) a nursing home; (2) an in-state home health agency; (3) an in-state licensed hospice; (4) a community-based health program operated by a political subdivision of the state or other nonprofit health organization that provides prenatal care delivered by New Mexico licensed, certified or registered health care practitioners; (5) a community-based health program operated by a political subdivision of the state or other nonprofit health care organization that provides primary care d by a political subdivision of the state or other nonprofit health organization that provides prenatal care delivered by New Mexico licensed, certified or registered health care practitioners; (5) a community-based health program operated by a political subdivision of the state or other nonprofit health care organization that provides primary care delivered by New Mexico licensed, certified or registered health care practitioners; (6) a drug rehabilitation center; (7) an alcohol rehabilitation center; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 265 - (8) a mental health center; (9) a licensed medical doctor, osteopathic physician, dentist, optometrist or expanded practice nurse when providing emergency services, as determined by the board, in a hospital to an indigent patient; or (10) a licensed medical doctor or osteopathic physician, dentist, optometrist or expanded practice nurse when providing services in an outpatient setting, as determined by the board, to an indigent patient with a life-threatening illness or disability; O. "health care services" means treatment and services designed to promote improved health in the county indigent population, including primary care, prenatal care, dental care, provision of prescription drugs, preventive care or health outreach services, to the extent determined by resolution of the board; P. "planning" means the development of a countywide or multicounty health plan to improve and fund health services in the county based on the county's needs assessment and inventory of existing services and resources and that demonstrates coordination between the county and state and local health planning efforts; and Q. "commission" means the New Mexico health policy commission." Section 149. Section 27-7-25 NMSA 1978 (being Laws underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 266 - 1990, Chapter 79, Section 6, as amended) is amended to read: "27-7-25. EX-PARTE ORDERS FOR EMERGENCY PROTECTIVE SERVICES OR EMERGENCY PROTECTIVE PLACEMENT--NOTICE-- PETITION.-- A. Upon petition by the department, the court may issue an order authorizing the provision of involuntary protective services or protective placement on an emergency basis to an adult under the criteria set forth in Subsection B of this section. B. At the time a petition is filed or any time thereafter, the court may issue an ex-parte order authorizing the provision of involuntary protective services or involuntary protective placement upon a sworn written statement of facts showing probable cause exists to believe that: (1) the adult is incapacitated; (2) an emergency exists; (3) the adult lacks the ability to consent to receive protective services or protective placement; and (4) no person authorized by law or court order to give consent for the adult is available or willing to consent to the provision of protective services or protective placement on an emergency basis. C. The petition for an emergency ex-parte order shall set forth: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 267 - (1) the name, address and interest of the petitioner; (2) the name, age and address of the adult in need of protective services; (3) the facts describing the nature of the emergency; (4) the facts describing the nature of the adult's incapacity; (5) the proposed protective services or protective placement; (6) the petitioner's reasonable belief, together with supporting facts, about the need for emergency intervention; and (7) the facts showing the petitioner's attempts to obtain the adult's consent to the proposed protective services or protective placement and the outcome of those attempts. D. An affidavit for an ex-parte order for emergency protective services or emergency protective placement may be signed by any person who has knowledge of the facts alleged or is informed of them and believes that they are true. E. The Rules of Evidence do not apply to the issuance of an emergency ex-parte protective services or protective placement order. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 268 - F. In issuing an emergency ex-parte order, the court shall adhere to the following limitations: (1) only the protective services or protective placement necessary to remove the conditions creating the emergency shall be ordered, and the order shall specifically designate the proposed protective services or protective placement; (2) protective services or protective placement authorized by an emergency ex-parte order shall not include hospitalization or a change of residence, unless the order gives specific approval for the action; (3) protective services or protective placement may be provided by emergency ex-parte order only for ten days; provided that the original order may be renewed once for a period of twenty additional days upon application to the court showing that continuation of the original order is necessary to remove the conditions creating the emergency. An application for renewal of the original order shall be supported by a written report of the results of the evaluation required by Subsection C of Section 27-7-27 NMSA 1978 and copies of the actual evaluations; (4) the issuance of an emergency ex-parte order shall not deprive the adult of any rights except those provided for in the order; (5) to implement an emergency ex-parte underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 269 - order, the court may authorize forcible entry of premises for the purposes of rendering protective services or protective placement or transporting the adult to another location for the provision of services or placement only if facts contained in the affidavit supporting the petition for ex- parte order show that attempts to gain voluntary access to the premises have failed and forcible entry is necessary; provided that persons making an authorized forcible entry shall be accompanied by a law enforcement officer; and (6) service of an ex-parte order authorizing forcible entry shall be according to the following procedure. The order shall be served on the alleged incapacitated adult by a person authorized to serve arrest warrants and shall direct the officer to advise the adult of the nature of the protective services or protective placement that have been ordered by the court. If the order authorizes emergency protective placement, the order shall direct the officer to assist in transfer of the adult to a place designated by the court. G. Notice of the filing of the petition and the issuance of the emergency ex-parte order, including a copy of the petition, the ex-parte order and the affidavit for ex-parte order, shall be given to the adult and the adult's spouse or domestic partner or, if none, the adult children or next of kin, surrogate or guardian, if any. The notice shall underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 270 - be given, in language reasonably understandable by its intended recipients, within twenty-four hours, excluding Saturdays, Sundays and legal holidays, from the time that the ex-parte order authorizing protective services or protective placement is issued by the court or, if the ex-parte order authorizes forcible entry, from the time the ex-parte order is served upon the incapacitated adult. The notice shall inform the recipients that a hearing will be held no later than ten days after the date the petition is filed to determine whether the conditions creating the emergency have been removed and whether the adult should be released from the court's order for protective services or protective placement. H. Within ten days from the filing of a petition for an emergency order for protective services or protective placement, the court shall hold a hearing upon any application for renewal of the emergency order. The hearing upon an application for renewal shall be held pursuant to the provisions of Section 27-7-27 NMSA 1978. I. The protected adult or any interested person may petition the court to have the emergency order set aside or modified at any time, notwithstanding any prior findings by the court that the adult is incapacitated. J. If the adult continues to need protective services or protective placement after the renewal order underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 271 - provided in Paragraph (3) of Subsection F of this section has expired, the department or original petitioner shall immediately petition the court to appoint a conservator or guardian or to order nonemergency protective services or protective placement pursuant to Section 27-7-26 NMSA 1978. K. The petitioner shall not be liable for filing the petition if the petitioner acted in good faith." Section 150. Section 27-7-26 NMSA 1978 (being Laws 1989, Chapter 389, Section 13, as amended) is amended to read: "27-7-26. NONEMERGENCY PROTECTIVE SERVICES OR PROTECTIVE PLACEMENT--FINDINGS--PETITION--ORDER.-- A. Involuntary nonemergency protective services or protective placement shall not take place unless ordered by a court after a finding on the record based on clear and convincing evidence that: (1) the adult is incapacitated and lacks the ability to consent; (2) the adult is incapable of providing for the adult's own care or custody and the adult is at significant risk of abuse, neglect or exploitation that creates a substantial risk of serious physical harm to the adult or others; (3) the adult needs care or treatment; (4) the proposed order is substantially underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 272 - supported by the evaluation provided for in Subsection E of this section or, if not so supported, there are compelling reasons for ordering those protective services or that protective placement; and (5) no less restrictive alternative course of care or treatment is available that is consistent with the incapacitated adult's welfare and safety. B. The petition for nonemergency protective services or protective placement shall state with particularity the factual basis for the allegations specified in Subsection A of this section and shall be based on the most reliable information available to the petitioner. C. Written notice of a petition for nonemergency protective services or protective placement shall be served upon the adult by personal service at least fourteen days prior to the time set for a hearing. Notice shall also be given to the adult's legal counsel, caretaker, guardian, conservator, surrogate, spouse or domestic partner and adult children or next of kin, whose names and addresses are known to the petitioner or can with reasonable diligence be ascertained. The person serving the notice shall certify to the court that the petition has been delivered and how the required notice was given. The notice shall be in language reasonably understandable by the adult who is the subject of the petition and also shall be given orally if necessary. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 273 - The notice shall include: (1) the names of all petitioners; (2) the factual basis of the belief that protective services or protective placement is needed; (3) the rights of the adult in the court proceedings; and (4) the name and address of the proposed protective services or protective placement. D. Upon the filing of a petition for nonemergency protective services or protective placement, the court shall hold a hearing pursuant to the provisions of Section 27-7-27 NMSA 1978. E. In order to make the findings required in Paragraphs (2) through (5) of Subsection A of this section, the court shall direct that a comprehensive evaluation of the adult alleged to be in need of protective services or protective placement be conducted as provided in Subsection C of Section 27-7-27 NMSA 1978. F. In ordering nonemergency protective placement, the court shall give consideration to the choice of residence of the adult. The court may order protective placement in a facility or with a provider. G. The court may authorize nonemergency protective services or protective placement for an adult for a period not to exceed six months. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 274 - H. At the time of expiration of an order for nonemergency protective services or protective placement, the original petitioner may petition the court to extend its order for protective services or protective placement for an additional period not to exceed six months. The contents of the petition shall conform to the provisions of Subsections A and B of this section. Notice of the petition for the extension of protective services or protective placement shall be made in conformity with Subsection C of this section. The court shall hold a hearing to determine whether to renew the order. Any person entitled to a notice under Subsection C of this section may appear at the hearing and challenge the petition. The court shall conduct the hearing pursuant to the provisions of Section 27-7-27 NMSA 1978. I. The services provided to or the residence of an adult that had been established pursuant to an order for nonemergency protective services or protective placement shall not be changed unless the court authorizes the change of services or transfer of residence. The adult or the adult's legal representative may petition the court to order such a change of services or transfer of residence. J. Prior to the expiration of the nonemergency protective services or protective placement, the department shall review the need for continued services or placement, including the necessity for appointment of a conservator or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 275 - guardian, and shall make such recommendation to the court." Section 151. Section 28-1-7 NMSA 1978 (being Laws 1969, Chapter 196, Section 7, as amended) is amended to read: "28-1-7. UNLAWFUL DISCRIMINATORY PRACTICE.--It is an unlawful discriminatory practice for: A. an employer, unless based on a bona fide occupational qualification or other statutory prohibition, to refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal or domestic partner affiliation; provided, however, that 29 U.S.C. Section 631(c)(1) and (2) shall apply to discrimination based on age; or, if the employer has fifteen or more employees, to discriminate against an employee based upon the employee's sexual orientation or gender identity; B. a labor organization to exclude a person or to expel or otherwise discriminate against any of its members or against any employer or employee because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal or domestic partner affiliation, physical or mental handicap or serious medical condition; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 276 - C. any employer, labor organization or joint apprenticeship committee to refuse to admit or employ any person in any program established to provide an apprenticeship or other training or retraining because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal or domestic partner affiliation; D. any person, employer, employment agency or labor organization to print or circulate or cause to be printed or circulated any statement, advertisement or publication, to use any form of application for employment or membership or to make any inquiry regarding prospective membership or employment that expresses, directly or indirectly, any limitation, specification or discrimination as to race, color, religion, national origin, ancestry, sex, sexual orientation, gender identity, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal or domestic partner affiliation, unless based on a bona fide occupational qualification; E. an employment agency to refuse to list and properly classify for employment or refer a person for employment in a known available job, for which the person is otherwise qualified, because of race, religion, color, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 277 - national origin, ancestry, sex, sexual orientation, gender identity, spousal or domestic partner affiliation, physical or mental handicap or serious medical condition, unless based on a bona fide occupational qualification, or to comply with a request from an employer for referral of applicants for employment if the request indicates either directly or indirectly that the employer discriminates in employment on the basis of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal or domestic partner affiliation, physical or mental handicap or serious medical condition, unless based on a bona fide occupational qualification; F. any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal or domestic partner affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation; G. any person to: (1) refuse to sell, rent, assign, lease or sublease or offer for sale, rental, lease, assignment or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 278 - sublease any housing accommodation or real property to any person or to refuse to negotiate for the sale, rental, lease, assignment or sublease of any housing accommodation or real property to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal or domestic partner affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation; (2) discriminate against any person in the terms, conditions or privileges of the sale, rental, assignment, lease or sublease of any housing accommodation or real property or in the provision of facilities or services in connection therewith because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal or domestic partner affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation; or (3) print, circulate, display or mail or cause to be printed, circulated, displayed or mailed any statement, advertisement, publication or sign or use any form of application for the purchase, rental, lease, assignment or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 279 - sublease of any housing accommodation or real property or to make any record or inquiry regarding the prospective purchase, rental, lease, assignment or sublease of any housing accommodation or real property that expresses any preference, limitation or discrimination as to race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal or domestic partner affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation; H. any person to whom application is made either for financial assistance for the acquisition, construction, rehabilitation, repair or maintenance of any housing accommodation or real property or for any type of consumer credit, including financial assistance for the acquisition of any consumer good as defined by Section 55-9-102 NMSA 1978, to: (1) consider the race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal or domestic partner affiliation or physical or mental handicap of any individual in the granting, withholding, extending, modifying or renewing or in the fixing of the rates, terms, conditions or provisions of any financial assistance or in the extension of services in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 280 - connection with the request for financial assistance; or (2) use any form of application for financial assistance or to make any record or inquiry in connection with applications for financial assistance that expresses, directly or indirectly, any limitation, specification or discrimination as to race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal or domestic partner affiliation or physical or mental handicap; I. any person or employer to: (1) aid, abet, incite, compel or coerce the doing of any unlawful discriminatory practice or to attempt to do so; (2) engage in any form of threats, reprisal or discrimination against any person who has opposed any unlawful discriminatory practice or has filed a complaint, testified or participated in any proceeding under the Human Rights Act; or (3) willfully obstruct or prevent any person from complying with the provisions of the Human Rights Act or to resist, prevent, impede or interfere with the commission or any of its members, staff or representatives in the performance of their duties under the Human Rights Act; or J. any employer to refuse or fail to accommodate a person's physical or mental handicap or serious medical underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 281 - condition, unless such accommodation is unreasonable or an undue hardship." Section 152. Section 28-3-8 NMSA 1978 (being Laws 1977, Chapter 292, Section 2) is amended to read: "28-3-8. FINDINGS AND PURPOSE OF ACT.--The legislature finds that there is an increasing number of persons in New Mexico who, in their middle years and having fulfilled the role of homemaker, find themselves displaced because of dissolution of marriage or domestic partnership, death of a spouse or domestic partner or other loss of family income. As a consequence of this displacement, such persons suffer a greatly reduced income, high rate of unemployment because of age, lack of work experience, discrimination and limited or no opportunity to collect funds of assistance such as social security, unemployment compensation, medicaid and other health insurance benefits or pension plans of the spouse or domestic partner. It is the purpose of [this legislation] the Displaced Homemakers Act to provide research and planning for programs to serve such displaced homemakers." Section 153. Section 28-3-9 NMSA 1978 (being Laws 1977, Chapter 292, Section 3) is amended to read: "28-3-9. DEFINITIONS.--As used in the Displaced Homemakers Act: A. "displaced homemaker" means any individual who has worked in the home for a substantial number of years underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 282 - providing unpaid household services for family members and who: (1) has difficulty obtaining adequate employment; or (2) has been dependent on the income of another family member but is no longer supported by such income, has been dependent on federal assistance but is no longer eligible for such assistance or is supported as the parent of minor children by federal assistance or spousal or domestic partner support; and B. "income of another family member" means any income in support of an entire family unit used for the purpose of providing that family with economic security, but does not include the payment of alimony or child support." Section 154. Section 28-13A-1 NMSA 1978 (being Laws 1991, Chapter 93, Section 1, as amended) is amended to read: "28-13A-1. SPECIAL RECREATION AND MUSEUM PRIVILEGES.-- A. On the federally designated legal holiday known as "Veterans' Day", any New Mexico resident, who provides satisfactory proof that the resident is currently serving or has served in the armed forces of the United States, and the resident's spouse or domestic partner and dependent children, shall be entitled to: (1) free use of any state park or recreation area operated by the state parks division of the energy, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 283 - minerals and natural resources department, including the waiving of all admittance, camping, permit or other user fees or charges; and (2) free general admission to any state museum or monument. B. The governing boards of state museums and monuments shall waive general museum and monument admission fees for fifty percent or more disabled veterans residing in the state. Proof of disability satisfactory to the governing boards of the state museums and monuments is required to obtain the privileges pursuant to this subsection." Section 155. Section 29-2-6 NMSA 1978 (being Laws 1941, Chapter 147, Section 6, as amended) is amended to read: "29-2-6. QUALIFICATIONS OF MEMBERS.-- A. Members of the New Mexico state police, except the chief, shall: (1) at the time of their appointment, be citizens of the United States; (2) at the time of their appointment, have reached twenty-one years of age; (3) except as otherwise provided in Subsection B of this section, at the time of their appointment, have completed at least sixty hours of college credit; (4) be of good moral character and not have underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 284 - been convicted of a felony or infamous crime in the courts of this state or other state or any country or in the federal courts; and (5) pass a physical examination the New Mexico state police may require. B. Notwithstanding the requirement of Paragraph (3) of Subsection A of this section, the chief may appoint a member of the New Mexico state police who has at least thirty hours of college credit, and the chief shall determine an appropriate time period after appointment for the member to complete the additional thirty hours of college credit required. C. A person shall not be commissioned a member of the New Mexico state police who is related by blood, [or] marriage or domestic partnership within the fourth degree to a member of the public safety advisory commission." Section 156. Section 29-4A-2 NMSA 1978 (being Laws 1995, Chapter 59, Section 2, as amended) is amended to read: "29-4A-2. FINDINGS--PURPOSE.--The legislature finds that peace officers throughout the state risk their lives daily to protect the citizens of New Mexico. The legislature further finds that when peace officers are killed in the line of duty, their immediate families can suffer grievously, both emotionally and economically. To recognize the substantial public safety benefits conferred by peace officers and in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 285 - consideration of the sacrifices undertaken by these officers and their families for the citizens of New Mexico, it is the purpose of the Peace Officers' Survivors Supplemental Benefits Act to ensure that certain supplemental death benefits accrue to the spouse or domestic partner and surviving children or to the parents, if there are no surviving children or spouse or domestic partner, of a peace officer killed in the line of duty." Section 157. Section 29-4A-5 NMSA 1978 (being Laws 1995, Chapter 59, Section 5, as amended) is amended to read: "29-4A-5. PEACE OFFICERS' SURVIVORS SUPPLEMENTAL DEATH BENEFITS--REVIEW COMMITTEE--DETERMINATION--PAYMENT.-- A. There is created the "peace officers' survivors supplemental death benefits review committee". The committee shall consist of the attorney general, the chief of the New Mexico state police and the state president of the fraternal order of police or their designees. B. The peace officers' survivors supplemental death benefits review committee shall determine whether a peace officer has been killed in the line of duty and advise the secretary of that determination. In addition to any other death benefits provided by law, the surviving spouse or surviving domestic partner, children or parents shall be paid two hundred fifty thousand dollars ($250,000) as supplemental death benefits whenever a peace officer is killed in the line underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 286 - of duty. The benefits shall be paid from the fund. C. The benefits shall be paid first to the surviving spouse or surviving domestic partner. If there is no surviving spouse or surviving domestic partner, the benefits shall be distributed in pro rata shares to all surviving children. If there are no surviving children or spouse or domestic partner, benefits shall be distributed to the surviving parents of the peace officer." Section 158. Section 29-15-2 NMSA 1978 (being Laws 1995, Chapter 146, Section 2, as amended) is amended to read: "29-15-2. DEFINITIONS.--As used in the Missing Persons Information Act: A. "child" means an individual under the age of eighteen years who is not emancipated; B. "clearinghouse" means the missing persons information clearinghouse; C. "custodian" means a parent, guardian or other person who exercises legal physical control, care or custody of a child; D. "endangered person" means a missing person who: (1) is in imminent danger of causing harm to the person's self; (2) is in imminent danger of causing harm to another; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 287 - (3) is in imminent danger of being harmed by another or who has been harmed by another; or (4) has Alzheimer's disease; E. "immediate family member" means the spouse or domestic partner or nearest relative of a person; F. "lead station" means an AM radio station that has been designated as the "state primary station" by the federal communications commission for the emergency alert system; G. "missing person" means a person whose whereabouts are unknown to the person's custodian or immediate family member and the circumstances of whose absence indicate that: (1) the person did not leave the care and control of the custodian or immediate family member voluntarily and the taking of the person was not authorized by law; or (2) the person voluntarily left the care and control of the custodian without the custodian's consent and without intent to return; H. "missing person report" means information that is: (1) given to a law enforcement agency on a form used for sending information to the national crime information center; and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 288 - (2) about a person whose whereabouts are unknown to the reporter and who is alleged in the form submitted by the reporter to be missing; I. "person" means an individual, regardless of age; J. "possible match" means the similarities between an unidentified body of a person and a missing person that would lead one to believe they are the same person; K. "reporter" means the person who reports a missing person; and L. "state agency" means an agency of the state, political subdivision of the state or public post-secondary educational institution." Section 159. Section 30-3-11 NMSA 1978 (being Laws 1995, Chapter 221, Section 2, as amended) is amended to read: "30-3-11. DEFINITIONS.--As used in the Crimes Against Household Members Act: A. "household member" means a spouse or domestic partner, former spouse or former domestic partner or a family member, including a relative, parent, present or former step-parent, present or former in-law, a co-parent of a child or a person with whom a person has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for the purposes of the Crimes Against Household Members Act; and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 289 - B. "continuing personal relationship" means a dating or intimate relationship." Section 160. Section 31-1-7 NMSA 1978 (being Laws 1979, Chapter 178, Section 1, as amended) is amended to read: "31-1-7. ARREST WITHOUT WARRANT--LIABILITY.-- A. Notwithstanding the provisions of any other law to the contrary, a peace officer may arrest a person and take that person into custody without a warrant when the officer is at the scene of a domestic disturbance and has probable cause to believe that the person has committed an assault or a battery upon a household member. As used in this section: "household member" means a spouse; domestic partner; former spouse; former domestic partner; family member, including a relative, parent, present or former stepparent, present or former in-law, child or co-parent of a child; or a person with whom the victim has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section. B. No peace officer shall be held criminally or civilly liable for making an arrest pursuant to this section, provided [he] the officer acts in good faith and without malice. C. Whether or not an arrest is made pursuant to this section, a peace officer may remain with the victim and assist the victim in getting to a shelter or receiving proper underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 290 - medical attention." Section 161. Section 31-21-25 NMSA 1978 (being Laws 1975, Chapter 194, Section 4, as amended) is amended to read: "31-21-25. POWERS AND DUTIES OF THE BOARD.-- A. The parole board shall have the powers and duties of the former state board of probation and parole pursuant to Sections 31-21-6 and 31-21-10 through 31-21-17 NMSA 1978 and such additional powers and duties relating to the parole of adults as are enumerated in this section. B. The parole board shall have the following powers and duties to: (1) grant, deny or revoke parole; (2) conduct or cause to be conducted such investigations, examinations, interviews, hearings and other proceedings as may be necessary for the effectual discharge of the duties of the board; (3) summon witnesses, books, papers, reports, documents or tangible things and administer oaths as may be necessary for the effectual discharge of the duties of the board; (4) maintain records of its acts, decisions and orders and notify each corrections facility of its decisions relating to persons who are or have been confined therein; (5) adopt an official seal of which the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 291 - courts shall take judicial notice; (6) employ such officers, agents, assistants and other employees as may be necessary for the effectual discharge of the duties of the board; (7) contract for services, supplies, equipment, office space and such other provisions as may be necessary for the effectual discharge of the duties of the board; and (8) adopt such rules and regulations as may be necessary for the effectual discharge of the duties of the board. C. The parole board shall provide a prisoner or parolee with a written statement of the reason or reasons for denying or revoking parole. D. The parole board shall adopt a written policy specifying the criteria to be considered by the board in determining whether to grant, deny or revoke parole or to discharge a parolee. E. When the parole board conducts a parole hearing for an offender, and upon request of the victim or family member the board shall allow the victim of the offender's crime or a family member of the victim to be present during the parole hearing. If the victim or a family member of the victim requests an opportunity to speak to the board during the hearing in public or private, the board underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 292 - shall grant that request. As used in this subsection, "family member of the victim" means a mother, father, sister, brother, child, [or] spouse or domestic partner of the victim or a person who has custody of the victim." Section 162. 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 underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 293 - (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. "family relationship group" means any person related to another person within the fourth degree of consanguinity or affinity; F. "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; G. "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. "relative" means a person's spouse, domestic partner, parent, grandparent, stepfather, stepmother, child, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 294 - grandchild, brother, sister, half-brother, half-sister, [or] spouse's parents or domestic partner's parents; and I. "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 163. Section 32A-1-11 NMSA 1978 (being Laws 1993, Chapter 77, Section 20, as amended) is amended to read: "32A-1-11. PETITION--FORM AND CONTENT.--A petition initiating proceedings pursuant to the provisions of Chapter 32A, Article 2, 3B, 4 or 6 NMSA 1978 shall be entitled, "In the Matter of ............, a child", and shall set forth with specificity: A. the facts necessary to invoke the jurisdiction of the court; B. if violation of a criminal statute or other law or ordinance is alleged, the citation to the appropriate law; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 295 - C. the name, birth date and residence address of the child; D. the name and residence address of the parents, guardian, custodian, [or] spouse or domestic partner, if any, of the child; and if no parent, guardian, custodian, [or] spouse or domestic partner, if any, resides or can be found within the state or if a residence address is unknown, the name of any known adult relative residing within the state or, if there be none, the known adult relative residing nearest to the court; E. whether the child is in custody or detention pursuant to the Delinquency Act and, if so, the place of custody or detention and the time the child was taken into custody; F. whether the child is an Indian child; and G. if any of the matters required to be set forth by this section are not known, a statement of those matters and the fact that they are not known." Section 164. Section 32A-2-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 32, as amended) is amended to read: "32A-2-3. DEFINITIONS.--As used in the Delinquency Act: A. "delinquent act" means an act committed by a child that would be designated as a crime under the law if committed by an adult, including the following offenses: (1) any of the following offenses pursuant underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 296 - to municipal traffic codes or the Motor Vehicle Code: (a) driving while under the influence of intoxicating liquor or drugs; (b) failure to stop in the event of an accident causing death, personal injury or damage to property; (c) unlawful taking of a vehicle or motor vehicle; (d) receiving or transferring of a stolen vehicle or motor vehicle; (e) homicide by vehicle; (f) injuring or tampering with a vehicle; (g) altering or changing of an engine number or other vehicle identification numbers; (h) altering or forging of a driver's license or permit or any making of a fictitious license or permit; (i) reckless driving; (j) driving with a suspended or revoked license; or (k) an offense punishable as a felony; (2) buying, attempting to buy, receiving, possessing or being served any alcoholic liquor or being present in a licensed liquor establishment, other than a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 297 - restaurant or a licensed retail liquor establishment, except in the presence of the child's parent, guardian, custodian or adult spouse or domestic partner. As used in this paragraph, "restaurant" means an establishment where meals are prepared and served primarily for on-premises consumption and that has a dining room, a kitchen and the employees necessary for preparing, cooking and serving meals. "Restaurant" does not include an establishment, as defined in regulations promulgated by the director of the special investigations division of the department of public safety, that serves only hamburgers, sandwiches, salads and other fast foods; (3) a violation of Section 30-29-2 NMSA 1978, regarding the illegal use of a glue, aerosol spray product or other chemical substance; (4) a violation of the Controlled Substances Act; (5) escape from the custody of a law enforcement officer or a juvenile probation or parole officer or from any placement made by the department by a child who has been adjudicated a delinquent child; (6) a violation of Section 30-15-1.1 NMSA 1978 regarding unauthorized graffiti on personal or real property; or (7) a violation of an order of protection issued pursuant to the provisions of the Family Violence underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 298 - Protection Act; B. "delinquent child" means a child who has committed a delinquent act; C. "delinquent offender" means a delinquent child who is subject to juvenile sanctions only and who is not a youthful offender or a serious youthful offender; D. "detention facility" means a place where a child may be detained under the Children's Code pending court hearing and does not include a facility for the care and rehabilitation of an adjudicated delinquent child; E. "felony" means an act that would be a felony if committed by an adult; F. "misdemeanor" means an act that would be a misdemeanor or petty misdemeanor if committed by an adult; G. "restitution" means financial reimbursement by the child to the victim or community service imposed by the court and is limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical, psychiatric and psychological treatment for injury to a person and lost wages resulting from physical injury, which are a direct and proximate result of a delinquent act. "Restitution" does not include reimbursement for damages for mental anguish, pain and suffering or other intangible losses. As used in this subsection, "victim" means a person who is injured or suffers damage of any kind by an act that underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 299 - is the subject of a complaint or referral to law enforcement officers or juvenile probation authorities. Nothing contained in this definition limits or replaces the provisions of Subsections A and B of Section 32A-2-27 NMSA 1978; H. "serious youthful offender" means an individual fifteen to eighteen years of age who is charged with and indicted or bound over for trial for first degree murder. A "serious youthful offender" is not a delinquent child as defined pursuant to the provisions of this section; I. "supervised release" means the release of a juvenile, whose term of commitment has not expired, from a facility for the care and rehabilitation of adjudicated delinquent children, with specified conditions to protect public safety and promote successful transition and reintegration into the community. A juvenile on supervised release is subject to monitoring by the department until the term of commitment has expired and may be returned to custody for violating conditions of release; and J. "youthful offender" means a delinquent child subject to adult or juvenile sanctions who is: (1) fourteen to eighteen years of age at the time of the offense and who is adjudicated for at least one of the following offenses: (a) second degree murder, as provided underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 300 - in Section 30-2-1 NMSA 1978; (b) assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978; (c) kidnapping, as provided in Section 30-4-1 NMSA 1978; (d) aggravated battery, as provided in Subsection C of Section 30-3-5 NMSA 1978; (e) aggravated battery against a household member, as provided in Subsection C of Section 30-3-16 NMSA 1978; (f) aggravated battery upon a peace officer, as provided in Subsection C of Section 30-22-25 NMSA 1978; (g) shooting at a dwelling or occupied building or shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978; (h) dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978; (i) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; (j) robbery, as provided in Section 30-16-2 NMSA 1978; (k) aggravated burglary, as provided in Section 30-16-4 NMSA 1978; (l) aggravated arson, as provided in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 301 - Section 30-17-6 NMSA 1978; or (m) abuse of a child that results in great bodily harm or death to the child, as provided in Section 30-6-1 NMSA 1978; (2) fourteen to eighteen years of age at the time of the offense, who is adjudicated for any felony offense and who has had three prior, separate felony adjudications within a three-year time period immediately preceding the instant offense. The felony adjudications relied upon as prior adjudications shall not have arisen out of the same transaction or occurrence or series of events related in time and location. Successful completion of consent decrees are not considered a prior adjudication for the purposes of this paragraph; or (3) fourteen years of age and who is adjudicated for first degree murder, as provided in Section 30-2-1 NMSA 1978." Section 165. Section 32A-5-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 130, as amended) is amended to read: "32A-5-3. DEFINITIONS.--As used in the Adoption Act: A. "accrediting entity" means an entity that has entered into an agreement with the United States secretary of state pursuant to the federal Intercountry Adoption Act of 2000 and regulations adopted by the United States secretary underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 302 - of state pursuant to that act, to accredit agencies and approve persons who provide adoption services related to convention adoptions; B. "adoptee" means a person who is the subject of an adoption petition; C. "adoption service" means: (1) identifying a child for adoption and arranging the adoption of the child; (2) securing termination of parental rights to a child or consent to adoption of the child; (3) performing a background study on a child and reporting on the study; (4) performing a home study on a prospective adoptive parent and reporting on the study; (5) making determinations regarding the best interests of a child and the appropriateness of an adoptive placement for the child; (6) performing post-placement monitoring of a child until an adoption is final; and (7) when there is a disruption before an adoption of a child is final, assuming custody of the child and providing or facilitating the provision of child care or other social services for the child pending an alternative placement of the child; D. "agency" means a person certified, licensed or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 303 - otherwise specially empowered by law to place a child in a home in this or any other state for the purpose of adoption; E. "agency adoption" means an adoption when the adoptee is in the custody of an agency prior to placement; F. "acknowledged father" means a father who: (1) acknowledges paternity of the adoptee pursuant to the putative father registry, as provided for in Section 32A-5-20 NMSA 1978; (2) is named, with his consent, as the adoptee's father on the adoptee's birth certificate; (3) is obligated to support the adoptee under a written voluntary promise or pursuant to a court order; or (4) has openly held out the adoptee as his own child by establishing a custodial, personal or financial relationship with the adoptee as follows: (a) for an adoptee under six months old at the time of placement: 1) has initiated an action to establish paternity; 2) is living with the adoptee at the time the adoption petition is filed; 3) has lived with the mother a minimum of ninety days during the two-hundred- eighty-day-period prior to the birth or placement of the adoptee; 4) has lived with the adoptee within the ninety days immediately preceding the adoptive placement; 5) has provided reasonable and fair financial support to the mother during underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 304 - the pregnancy and in connection with the adoptee's birth in accordance with [his] the parent's means and when not prevented from doing so by the person or authorized agency having lawful custody of the adoptee or the adoptee's mother; 6) has continuously paid child support to the mother since the adoptee's birth in an amount at least equal to the amount provided in Section 40-4-11.1 NMSA 1978, or has brought current any delinquent child support payments; or 7) any other factor the court deems necessary to establish a custodial, personal or financial relationship with the adoptee; or (b) for an adoptee over six months old at the time of placement: 1) has initiated an action to establish paternity; 2) has lived with the adoptee within the ninety days immediately preceding the adoptive placement; 3) has continuously paid child support to the mother since the adoptee's birth in an amount at least equal to the amount provided in Section 40-4-11.1 NMSA 1978, or is making reasonable efforts to bring delinquent child support payments current; 4) has contact with the adoptee on a monthly basis when physically and financially able and when not prevented by the person or authorized agency having lawful custody of the adoptee; or 5) has regular communication with the adoptee, or with the person or agency having the care or custody of the adoptee, when physically and financially underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 305 - unable to visit the adoptee and when not prevented from doing so by the person or authorized agency having lawful custody of the adoptee; G. "alleged father" means an individual whom the biological mother has identified as the biological father, but the individual has not acknowledged paternity or registered with the putative father registry as provided for in Section 32A-5-20 NMSA 1978; H. "consent" means a document: (1) signed by a biological parent whereby the parent grants consent to the adoption of the parent's child by another; (2) whereby the department or an agency grants its consent to the adoption of a child in its custody; or (3) signed by the adoptee if the child is fourteen years of age or older; I. "convention adoption" means: (1) an adoption by a United States resident of a child who is a resident of a foreign country that is a party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption; or (2) an adoption by a resident of a foreign country that is a party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 306 - Adoption of a child who is a resident of the United States; J. "counselor" means a person certified by the department to conduct adoption counseling in independent adoptions; K. "department adoption" means an adoption when the child is in the custody of the department; L. "foreign born child" means any child not born in the United States who is not a citizen of the United States; M. "former parent" means a parent whose parental rights have been terminated or relinquished; N. "full disclosure" means mandatory and continuous disclosure by the investigator, agency, department or petitioner throughout the adoption proceeding and after finalization of the adoption of all known, nonidentifying information regarding the adoptee, including: (1) health history; (2) psychological history; (3) mental history; (4) hospital history; (5) medication history; (6) genetic history; (7) physical descriptions; (8) social history; (9) placement history; and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 307 - (10) education; O. "independent adoption" means an adoption when the child is not in the custody of the department or an agency; P. "investigator" means an individual certified by the department to conduct pre-placement studies and post- placement reports; Q. "office" means a place for the regular transaction of business or performance of particular services; R. "parental rights" means all rights of a parent with reference to a child, including parental right to control, to withhold consent to an adoption or to receive notice of a hearing on a petition for adoption; S. "placement" means the selection of a family for an adoptee or matching of a family with an adoptee and physical transfer of the adoptee to the family in all adoption proceedings, except in adoptions filed pursuant to Paragraphs (1) and (2) of Subsection C of Section 32A-5-12 NMSA 1978, in which case placement occurs when the parents consent to the adoption, parental rights are terminated or parental consent is implied; T. "post-placement report" means a written evaluation of the adoptive family and the adoptee after the adoptee is placed for adoption; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 308 - U. "pre-placement study" means a written evaluation of the adoptive family, the adoptee's biological family and the adoptee; V. "presumed father" means: (1) the husband or domestic partner of the biological mother at the time the adoptee was born; (2) an individual who was married to or in a domestic partnership with the mother and either the adoptee was born during the term of the marriage or domestic partnership or the adoptee was born within three hundred days after the marriage or domestic partnership was terminated by death, annulment, declaration of invalidity or [divorce] dissolution; or (3) before the adoptee's birth, an individual who attempted to marry the adoptee's biological mother by a marriage solemnized in apparent compliance with law or attempted to enter into a domestic partnership in apparent compliance with law, although the attempted marriage or attempted domestic partnership is or could be declared invalid and if the attempted marriage or attempted domestic partnership: (a) could be declared invalid only by a court, the adoptee was born during the attempted marriage or attempted domestic partnership or within three hundred days after its termination by death, annulment, declaration underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 309 - of invalidity or [divorce] dissolution; or (b) is invalid without a court order, the adoptee was born within three hundred days after the termination of cohabitation; W. "record" means any petition, affidavit, consent or relinquishment form, transcript or notes of testimony, deposition, power of attorney, report, decree, order, judgment, correspondence, document, photograph, invoice, receipt, certificate or other printed, written, videotaped or tape-recorded material pertaining to an adoption proceeding; X. "relinquishment" means the document by which a parent relinquishes parental rights to the department or an agency to enable placement of the parent's child for adoption; Y. "resident" means a person who, prior to filing an adoption petition, has lived in the state for at least six months immediately preceding filing of the petition for adoption or a person who has become domiciled in the state by establishing legal residence with the intention of maintaining the residency indefinitely; and Z. "stepparent adoption" means an adoption of the adoptee by the adoptee's stepparent when the adoptee has lived with the stepparent for at least one year following the marriage or entry into a domestic partnership of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 310 - stepparent [to] and the custodial parent." Section 166. Section 32A-5-11 NMSA 1978 (being Laws 1993, Chapter 77, Section 138) is amended to read: "32A-5-11. WHO MAY BE ADOPTED--WHO MAY ADOPT.-- A. Any child may be adopted. B. Residents who are one of the following may adopt: (1) any individual who has been approved by the court as a suitable adoptive parent pursuant to the provisions of the Adoption Act; and (2) a married individual or domestic partner without the individual's spouse or domestic partner joining in the adoption if: (a) the nonjoining spouse or domestic partner is a parent of the adoptee; (b) the individual and the nonjoining spouse or domestic partner are legally separated; or (c) the failure of the nonjoining spouse or domestic partner to join in the adoption is excused for reasonable circumstances as determined by the court. C. Nonresidents who meet the criteria of Subsection B of this section may adopt in New Mexico if the adoptee is a resident of New Mexico or was born in New Mexico but is less than six months of age and was placed by the department or an agency licensed by the state of New Mexico." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 311 - Section 167. Section 32A-5-12 NMSA 1978 (being Laws 1993, Chapter 77, Section 139, as amended) is amended to read: "32A-5-12. PLACEMENT FOR ADOPTION--RESTRICTIONS--FULL DISCLOSURE.-- A. No petition for adoption shall be granted by the court unless the adoptee was placed in the home of the petitioner for the purpose of adoption: (1) by the department; (2) by an appropriate public authority of another state; (3) by an agency; or (4) pursuant to a court order, as provided in Section 32A-5-13 NMSA 1978. B. The provisions of Subsection A of this section do not apply to a child in the department's custody who is being adopted pursuant to the provisions of the Abuse and Neglect Act. C. When an adoptee is not in the custody of the department or an agency, the adoption is an independent adoption and the provisions of this section and Section 32A-5-13 NMSA 1978 shall apply, except when the following circumstances exist: (1) a stepparent of the adoptee seeks to adopt the adoptee and, prior to the filing of the adoption underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 312 - petition, the adoptee has lived with the stepparent for at least one year since the marriage or entry into the domestic partnership of the stepparent [to] and the custodial parent and the family has received counseling, as provided for in Section 32A-5-22 NMSA 1978; (2) a relative within the fifth degree of consanguinity to the adoptee or that relative's spouse or domestic partner seeks to adopt the adoptee and, prior to the filing of the adoption petition, the adoptee has lived with the relative or the relative's spouse or domestic partner for at least one year; or (3) a person designated to care for the adoptee in the will of the adoptee's deceased parent seeks to adopt the adoptee and, prior to the filing of the adoption petition, the adoptee has lived with that person for at least one year. D. All placements shall be made by the department, an agency or the parent of the adoptee pursuant to Section 32A-5-13 NMSA 1978. E. In all adoptions, prior to any placement being made, the person making the placement shall provide full disclosure." Section 168. Section 32A-5-13 NMSA 1978 (being Laws 1993, Chapter 77, Section 140, as amended) is amended to read: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 313 - "32A-5-13. INDEPENDENT ADOPTIONS--REQUEST FOR PLACEMENT--PLACEMENT ORDER--CERTIFICATION.-- A. When a placement order is required, the petitioner shall file a request with the court to allow the placement. An order permitting the placement shall be obtained prior to actual placement. B. Only a pre-placement study that has been prepared or updated within one year immediately prior to the date of placement, approving the petitioner as an appropriate adoptive parent, shall be filed with the court prior to issuance of a placement order, except as provided in Subsection C of Section 32A-5-12 NMSA 1978. C. In order for a person to be certified to conduct pre-placement studies, the person shall meet the standards promulgated by the department. If the child is an Indian child, the person shall meet the standards set forth in the federal Indian Child Welfare Act of 1978. D. The pre-placement study shall be conducted by an agency or a person certified by the department to conduct the study. A person or agency that wants to be certified to perform pre-placement studies shall file documents verifying their qualifications with the department. The department shall publish a list of persons or agencies certified to conduct a pre-placement study. If necessary to defray additional costs associated with compiling the list, the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 314 - department may assess and charge a reasonable administrative fee to the person or agency listed. E. When a person or agency that wants to be certified to perform pre-placement studies files false documentation with the department, the person or agency shall be subject to the provisions of Section 32A-5-42 NMSA 1978. F. A request for placement shall be filed and verified by the petitioner and shall allege: (1) the full name, age and place and duration of residence of the petitioner and, if married or in a domestic partnership, the place and date of marriage or entry into the domestic partnership; (2) the date and place of birth of the adoptee, if known, or the anticipated date and place of birth of the adoptee; (3) a detailed statement of the circumstances and persons involved in the proposed placement; (4) if the adoptee has been born, the address where the adoptee is residing at the time of the request for placement; (5) if the adoptee has been born, the places where the adoptee has lived within the past three years and the names and addresses of the persons with whom the adoptee has lived. If the adoptee is in the custody of an agency or the department, the address shall be the address of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 315 - agency or the county office of the department from which the child was placed; (6) the existence of any court orders that are known to the petitioner and that regulate custody, visitation or access to the adoptee, copies of which shall be attached to the request for placement as exhibits; if copies of any such court orders are unavailable at the time of filing the request for placement, the copies shall be filed prior to the issuance of the order of placement; (7) that the petitioner desires to establish a parent and child relationship between the petitioner and the adoptee and that the petitioner is a fit and proper person able to care and provide for the adoptee's welfare; (8) the relationship, if any, of the petitioner to the adoptee; (9) whether the adoptee is subject to the federal Indian Child Welfare Act of 1978, and, if so, the petition shall allege the actions taken to comply with the federal Indian Child Welfare Act of 1978 and all other allegations required pursuant to that act; (10) whether the adoption is subject to the Interstate Compact on the Placement of Children and what specific actions have been taken to comply with the Interstate Compact on the Placement of Children; and (11) the name, address and telephone number underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 316 - of the agency or investigator who has agreed to do the pre- placement study. G. The request for placement shall be served on all parties entitled to receive notice of the filing of a petition for adoption, as provided in Section 32A-5-27 NMSA 1978. An order allowing placement may be entered prior to service of the request for placement. H. A hearing and the court decision on the request for placement shall occur within thirty days of the filing of the request. I. As part of any court order authorizing placement under this section, the court shall find whether the pre-placement study complies with Section 32A-5-14 NMSA 1978 and that the time requirements concerning placement set forth in this section have been met." Section 169. Section 32A-5-20 NMSA 1978 (being Laws 1993, Chapter 77, Section 147, as amended) is amended to read: "32A-5-20. PUTATIVE FATHER REGISTRY--NOTICE--PENALTY.-- A. The purpose of the putative father registry is to protect the parental rights of fathers who affirmatively assume responsibility for children they may have fathered and to expedite adoptions of children whose biological fathers are unwilling to assume responsibility for their children by registering with the putative father registry or otherwise underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 317 - acknowledging their children. The registry does not relieve the obligation of mothers to identify known fathers. B. A putative father registry shall be established by the department of health to record the names and addresses of: (1) any person adjudicated by a court of this state to be the father of a child; (2) any person who has filed with the registry, before or after birth of a child out of wedlock or outside of a domestic partnership, a notice of intent to claim paternity of the child; (3) any person who has filed with the registry an instrument acknowledging paternity; or (4) any person adjudicated by a court of another state or territory of the United States to be the father of an out-of-wedlock a child born out of wedlock or outside of a domestic partnership, when a certified copy of the court order has been filed with the registry. C. A person filing a notice of intent to claim paternity of a child or an acknowledgment of paternity shall include in the notice the following: (1) his name; (2) his current address; (3) the mother's name and any other identifying information requested by the department of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 318 - health; and (4) the child's name, if known, and any other identifying information requested by the department of health. D. If the person filing the notice of intent to claim paternity of a child or acknowledgment changes his address, the person shall notify the department of health of his new address in the manner prescribed by the department of health. E. A person who has filed a notice of intent to claim paternity may at any time revoke a notice of intent to claim paternity previously filed. Upon receipt by the registry of the notice of revocation, the revoked notice of intent to claim paternity shall be deemed a nullity nunc pro tunc. F. No registration fee shall be charged for registering the intent to claim paternity of a child or acknowledgment of paternity. The department of health may charge a reasonable fee as prescribed by regulation for processing searches of the putative father registry. G. An unrevoked notice of intent to claim paternity of a child may be introduced in evidence by any party in any proceeding in which that fact may be relevant. H. If a father-child relationship has not been established pursuant to the New Mexico Uniform Parentage Act, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 319 - a petitioner for adoption of or termination of parental rights regarding a child shall obtain a certificate of search of the putative father registry. I. If a petitioner for adoption of or termination of parental rights regarding a child has reason to believe that the conception or birth of the child may have occurred in another state, the petitioner shall also obtain a certificate of search from the putative father registry, if any, in that state. J. The department of health shall furnish to the requester a certificate of search of the registry on request of any court, a state agency, the department, the petitioner's attorney or the mother of the child. The information shall not be disclosed to any other person, except upon order of the court for good cause shown. The requester shall furnish the department with a stamped, self- addressed reply envelope. K. A certificate provided by the department of health shall be signed on behalf of the department of health and state that: (1) a search has been made of the registry; and (2) a registration containing the information required to identify the registrant: (a) has been found and is attached to underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 320 - the certificate of search; or (b) has not been found. L. A petitioner shall file the certificate of search with the district court before a proceeding for adoption of or termination of parental rights regarding a child may be concluded. M. Subject to any rules established by the New Mexico supreme court, a certificate of search of the registry of paternity in this or another state is admissible in a proceeding for adoption of or termination of parental rights regarding a child and, if relevant, in other legal proceedings. N. The department of health may promulgate any regulations or forms necessary to implement the provisions of this section. O. Any person who intentionally and unlawfully releases information from the putative father registry to the public or makes any other unlawful use of the information in violation of the provisions of this section is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978." Section 170. Section 32A-5-26 NMSA 1978 (being Laws 1993, Chapter 77, Section 153, as amended by Laws 2003, Chapter 294, Section 4 and by Laws 2003, Chapter 321, Section 4) is amended to read: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 321 - "32A-5-26. PETITION--CONTENT.--A petition for adoption shall be filed and verified by the petitioner and shall allege: A. the full name, age and place and duration of residence of the petitioner and, if married or in a domestic partnership, the place and date of marriage or entry into the domestic partnership; the date and place of any prior marriage, prior domestic partnership, separation, or [divorce] dissolution; and the name of any present or prior spouse or present or prior domestic partner; B. the date and place of birth of the adoptee, if known; C. the places where the adoptee has lived within the past three years and the names and addresses of the persons with whom the adoptee has lived, unless the adoptee is in the custody of an agency or the department, in which case the petitioner shall state the name and address of the agency or the department's county office from which the child was placed; D. the birth name of the adoptee, any other names by which the adoptee has been known and the adoptee's proposed new name; provided that in the case of an agency adoption, if the petitioner and the biological parents have not agreed to the release of the adoptee's identity to the other person, the birth name and any other names by which the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 322 - adoptee has been known shall be filed with the court as separate documents at the time the petition is filed; E. where the adoptee is residing at the time of the filing of the petition and, if the adoptee is not living with the petitioner, when the adoptee will commence living with the petitioner; F. that the petitioner desires to establish a parent and child relationship with the adoptee and that the petitioner is a fit and proper person able to care and provide for the adoptee's welfare; G. the existence of any court orders, including placement orders, that are known to the petitioner and that regulate custody, visitation or access to the adoptee, copies of which shall accompany and be attached to the petition as exhibits; H. the relationship, if any, of the petitioner to the adoptee; I. the name and address of the placing agency, if any; J. the names and addresses of all persons from whom consents or relinquishments are required, attaching copies of those obtained and alleging the facts that excuse or imply the consents or relinquishments of the others; provided that if the petitioner has not agreed to the release of [his] the petitioner's identity to the parent or if the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 323 - parent has not agreed to the release of [his] the parent's identity to the petitioner, the names and addresses of all persons from whom consents or relinquishments are required shall be filed with the court as separate documents at the time the petition for adoption is filed; K. whether the adoption will be an open adoption, pursuant to the provisions of Section 32A-5-35 NMSA 1978; L. when consent of the child's father is alleged to be unnecessary, the results of a search of the putative father registry; M. whether the adoptee is an Indian child and, if so, the petition shall allege: (1) the tribal affiliation of the adoptee's parents; (2) what specific actions have been taken and by whom to notify the parents' tribe and the results of the contact, including the names, addresses, titles and telephone numbers of the persons contacted. Copies of any correspondence with the Indian tribe shall be attached as exhibits to the petition; and (3) what specific efforts were made to comply with the placement preferences set forth in the federal Indian Child Welfare Act of 1978 or the placement preferences of the appropriate Indian tribe; N. whether the adoption is subject to the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 324 - Interstate Compact on the Placement of Children and, if so, a copy of the interstate compact form indicating approval shall be attached as an exhibit to the petition; O. whether the adoptee is foreign-born and, if so, copies of the child's passport and United States visa and of all documents demonstrating that the adoptee is legally free for adoption, including a certificate from the United States secretary of state that certifies that the adoption is a convention adoption; P. whether the adoption is a convention adoption and, if so, the petition shall allege: (1) that the country in which the child has been residing is a party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption; (2) that the agency or person who is providing the adoption service has been approved as an accrediting entity; and (3) that the certificate issued by the United States secretary of state that certifies the adoption as a convention adoption has been filed with the court; and Q. the name, address and telephone number of the agency or individual who has agreed to conduct the post- placement report in accordance with Section 32A-5-31 NMSA 1978, if different than the agency or individual who prepared underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 325 - the pre-placement study in accordance with Section 32A-5-13 NMSA 1978." Section 171. Section 32A-5-27 NMSA 1978 (being Laws 1993, Chapter 77, Section 154, as amended) is amended to read: "32A-5-27. NOTICE OF PETITION--FORM OF SERVICE-- WAIVER.-- A. The petition for adoption shall be served by the petitioner on the following, unless it has been previously waived in writing: (1) the department, by providing a copy to the court clerk for service pursuant to Section 32A-5-7 NMSA 1978; (2) any person, agency or institution whose consent or relinquishment is required by Section 32A-5-17 NMSA 1978, unless the notice has been previously waived; (3) any acknowledged father of the adoptee; (4) the legally appointed custodian or guardian of the adoptee; (5) the spouse or domestic partner of any petitioner who has not joined in the petition; (6) the spouse or domestic partner of the adoptee; (7) the surviving parent of a deceased parent of the adoptee; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 326 - (8) any person known to the petitioner having custody of or visitation with the adoptee under a court order; (9) any person in whose home the child has resided for at least two months within the preceding six months; (10) the agency or individual authorized to investigate the adoption under Section 32A-5-13 NMSA 1978; and (11) any other person designated by the court. B. Notice shall not be served on the following: (1) an alleged father; and (2) a person whose parental rights have been relinquished or terminated. C. The petitioner shall provide the clerk of the court with a copy of the petition for adoption, to be mailed to the department pursuant to the provisions of Section 32A-5-7 NMSA 1978. D. In an adoption in which the adoptee is an Indian child, in addition to the notice required pursuant to Subsection A of this section, notice of pendency of the adoption proceeding shall be served by the petitioner on the appropriate Indian tribe and on an "Indian custodian" pursuant to the provisions of the federal Indian Child underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 327 - Welfare Act of 1978. E. The notice shall state that the person served shall respond to the petition within twenty days if the person intends to contest the adoption and shall state that the failure to so respond shall be treated as a default and the person's consent to the adoption shall not be required. Provided, however, that this provision shall not apply to an agency, the department or an investigator preparing the post-placement report pursuant to Section 32A-5-31 NMSA 1978. If an agency, the department or an investigator preparing the post-placement report wants to contest the adoption, it shall notify the court within twenty days after completion of the post-placement report. F. Service shall be made pursuant to the Rules of Civil Procedure for the District Courts. If the whereabouts of a parent whose consent is required is unknown, the investigator, department or agency charged with investigating the adoption under Section 32A-5-13 NMSA 1978 shall investigate the whereabouts of the parent and shall file by affidavit the results of the investigation with the court. Upon a finding by the court that information as to the whereabouts of a parent has been sufficiently investigated and is still insufficient to effect service in accordance with the Rules of Civil Procedure for the District Courts, the court shall issue an order providing for service by underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 328 - publication. G. As to any other person for whom notice is required under Subsection A of this section, service by certified mail, return receipt requested, shall be sufficient. If the service cannot be completed after two attempts, the court shall issue an order providing for service by publication. H. The notice required by this section may be waived in writing by the person entitled to notice. I. Proof of service of the notice on all persons for whom notice is required by this section shall be filed with the court before any hearing adjudicating the rights of the persons." Section 172. Section 32A-5-32 NMSA 1978 (being Laws 1993, Chapter 77, Section 159, as amended) is amended to read: "32A-5-32. STEPPARENT ADOPTIONS.-- A. Any person may adopt [his] that person's spouse's child or that person's domestic partner's child in accordance with the provisions of the Adoption Act. B. When the adoptee has lived with [his] a stepparent for at least one year following the stepparent's marriage to or entry into a domestic partnership with the custodial parent: (1) placement shall not be required pursuant underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 329 - to Section 32A-5-12 NMSA 1978; (2) a pre-placement study or post-placement report shall not be required unless ordered by the court; (3) and when the stepparent and the custodial parent have been married or in a domestic partnership for less than two years, counseling shall be required for the stepparent and the custodial parent; (4) the noncustodial parent shall receive counseling unless counseling is waived; (5) the adoptee, if ten years of age or older, shall receive counseling; (6) a criminal records check shall be conducted on a stepparent pursuant to the provisions of Section 32A-5-14 NMSA 1978; (7) a report of fees and charges shall not be prepared, unless ordered by the court pursuant to Section 32A-5-34 NMSA 1978; (8) the court may waive the ninety-day period between the filing of the petition for adoption and issuance of the decree of adoption; and (9) [when adopted] the adoptee, when adopted, shall take the name designated in the adoption petition, so long as the petitioner's spouse or domestic partner and the adoptee, if ten years of age or older, consent to the name. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 330 - C. When an adoptee has not lived with the stepparent for more than one year following the stepparent's marriage to or entry into a domestic partnership with the custodial parent, the adoption shall proceed as an independent adoption." Section 173. Section 32A-5-37 NMSA 1978 (being Laws 1993, Chapter 77, Section 164, as amended) is amended to read: "32A-5-37. STATUS OF ADOPTEE AND PETITIONER UPON ENTRY OF DECREE OF ADOPTION.-- A. Once adopted, an adoptee shall take a name designated by the petitioner, except in stepparent adoptions. In stepparent adoptions, the adoptee shall take the new name designated by the petitioner in the petition so long as the petitioner's spouse or domestic partner and the child, if over the age of fourteen years, consent to the new name. The name change need not be requested in the petition. B. After adoption, the adoptee and the petitioner shall sustain the legal relation of parent and child as if the adoptee were the biological child of the petitioner and the petitioner were the biological parent of the child. The adoptee shall have all rights and be subject to all of the duties of that relation, including the right of inheritance from and through the petitioner, and the petitioner shall have all rights and be subject to all duties of that underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 331 - relation, including right of inheritance from and through the adoptee." Section 174. Section 32A-6A-18 NMSA 1978 (being Laws 2007, Chapter 162, Section 18) is amended to read: "32A-6A-18. INDIVIDUAL INSTRUCTIONS.-- A. A child fourteen years of age or older who has capacity also has the right to direct the child's own treatment in the event of later incapacity. To do so, the child may give an individual instruction regarding the child's own treatment or habilitation. The individual instruction may be limited to take effect only if a specified condition arises. B. An individual instruction shall be effective without judicial approval and shall be written and signed by the child and the child's legal custodian and signed by a witness who is at least eighteen years of age and who attests that the child and the child's legal custodian are known to the witness, that they signed the individual instruction for mental health treatment in the witness' presence and that they appear to have capacity and are not acting under duress, fraud or undue influence. C. A witness to an individual instruction shall not be related to the child or the child's legal custodian by blood, [or] marriage or domestic partnership the child's attending qualified health care professional or an owner, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 332 - operator or employee of a mental health facility at which the child is receiving care or of any parent organization, subsidiary or contractor of the mental health facility. D. If the child's legal custodian refuses to consent to the individual instruction, the child may petition the court for determination of whether the individual instruction is in the child's best interest. E. A child's legal custodian or treatment guardian shall make treatment decisions in accordance with the child's individual instruction unless the treatment requested is infeasible or unavailable or would not offer the child any significant benefit as determined by the child's clinician. F. The individual instruction shall be implemented by the child's legal custodian under this section only upon certification that the child lacks capacity. The instruction shall cease to be effective upon a determination that the child has recovered capacity. G. Written certification that a child lacks or has recovered capacity or that another condition exists that affects an individual instruction shall be made according to the provisions of the Children's Mental Health and Developmental Disabilities Act. A child while having capacity may revoke all or part of an individual instruction for mental health treatment at any time and in any manner underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 333 - that communicates an intent to revoke. H. The fact that a child has executed a written individual instruction for treatment shall not constitute an indication of mental illness. I. A clinician who knows the existence of an individual instruction for mental health treatment, a revocation or a challenge to a determination or certification of lack of capacity shall obtain a copy and shall place it in the child's health care record. J. A clinician shall disclose an individual instruction for mental health treatment to other clinicians only when it is determined that the disclosure is necessary to provide treatment in accordance with an individual instruction." Section 175. Section 32A-21-5 NMSA 1978 (being Laws 1995, Chapter 206, Section 51) is amended to read: "32A-21-5. OVER THE AGE OF MAJORITY--PURPOSES.--An emancipated minor shall be considered as being over the age of majority for one or more of the following purposes: A. consenting to medical, dental or psychiatric care without parental consent, knowledge or liability; B. [his] capacity to enter into a binding contract; C. [his] capacity to sue and be sued in [his] the minor's own name; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 334 - D. [his] right to support by [his] the minor's parents; E. the rights of [his] the minor's parents to [his] the minor's earnings and to control [him] the minor; F. establishing [his] the minor's own residence; G. buying or selling real property; H. ending all vicarious liability of the minor's parents, guardian or custodian for the minor's torts; provided that nothing in this section shall affect any liability of a parent, guardian, custodian, spouse, domestic partner or employer of a minor imposed by the Motor Vehicle Code or any vicarious liability that arises from an agency relationship; or I. enrolling in any school or college." Section 176. Section 33-2-12.1 NMSA 1978 (being Laws 1983, Chapter 97, Section 1) is amended to read: "33-2-12.1. CORRECTIONS--FAMILY VISITS.--The secretary of corrections may promulgate rules and regulations providing for family visits between minimum or medium security inmates confined at state correctional facilities and their families. As used in this section: A. "family" means the inmate's legal spouse or domestic partner, natural parents, adoptive parents, if the adoption occurred and a family relationship existed prior to the inmate's incarceration, stepparents or foster parents, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 335 - grandparents, brothers and sisters, natural and adoptive children, stepchildren and grandchildren. The term does not include the inmate's aunts, uncles and cousins unless a bona fide foster relationship exists, nor does it include persons with only a common law relationship to the inmate; and B. "family visit" means extended and overnight visitation between eligible inmates and their families with all necessary accommodations provided by the corrections department for this purpose at a reasonable charge to the inmate or [his] the inmate's family to defray the costs of the accommodations. Families shall be required to provide food for the visit or, if security requires, to purchase all food for the visit from the department." Section 177. Section 34-7-20 NMSA 1978 (being Laws 1889, Chapter 90, Section 42, as amended) is amended to read: "34-7-20. RECORD OF DECEDENTS' ESTATES.--The county clerk shall keep a record or docket additional to the other records required by law, showing as follows: A. the name of every decedent whose estate is administered and the date of [his] the decedent's death; B. the names of all of the heirs and devisees and the surviving spouse or surviving domestic partner of the decedent and their ages and places of residence, so far as [the same] can be ascertained; and C. a note of every sale of real estate made under underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 336 - the order of the court, with a reference to the volume and page of the court record where a complete record [thereof] of the sale may be found." Section 178. Section 35-12-7 NMSA 1978 (being Laws 1969, Chapter 139, Section 6, as amended) is amended to read: "35-12-7. GARNISHMENT--EXEMPTIONS.-- A. Exempt from garnishment with respect to the enforcement of an order or decree for child support is fifty percent of the defendant's disposable earnings for any pay period. Exempt from garnishment in all other situations is the greater of the following portions of the defendant's disposable earnings: (1) seventy-five percent of the defendant's disposable earnings for any pay period; or (2) an amount each week equal to forty times the federal minimum hourly wage rate. The director of the financial institutions division of the regulation and licensing department shall provide a table giving equivalent exemptions for pay periods of other than one week. B. As used in this section: (1) "disposable earnings" means that part of a defendant's wage or salary remaining after deducting the amounts [which] that are required by law to be withheld; and (2) "federal minimum hourly wage rate" means the highest federal minimum hourly wage rate for an eight- underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 337 - hour day and a forty-hour week. However, it is immaterial whether the garnishee is exempt under federal law from paying the federal minimum hourly wage rate. C. The maximum amount [which] that may be taken from a spouse's or a domestic partner's disposable earnings under both the garnishment procedure and the wage deduction procedure for the enforcement of child support is fifty percent of the spouse's or domestic partner's disposable earnings." Section 179. Section 37-2-3 NMSA 1978 (being Laws 1897, Chapter 73, Section 130, as amended) is amended to read: "37-2-3. NO ABATEMENT--MARRIAGE--DOMESTIC PARTNERSHIP-- CONVICTION--IMPRISONMENT.--[SEC. 197.] No action shall abate by the marriage or entry into domestic partnership or conviction of crime of a party if the cause of action [survive or continue] survives or continues, but the court may order the [same] action to proceed, and an action may be brought or prosecuted to final judgment against any person in prison for crime regardless of [such] the imprisonment." Section 180. Section 38-1-16 NMSA 1978 (being Laws 1959, Chapter 153, Section 1, as amended) is amended to read: "38-1-16. PERSONAL SERVICE OF PROCESS OUTSIDE STATE.-- A. Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts enumerated in this subsection [thereby], underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 338 - submits [himself] or [his] the person's personal representative submits to the jurisdiction of the courts of this state as to any cause of action arising from: (1) the transaction of any business within this state; (2) the operation of a motor vehicle upon the highways of this state; (3) the commission of a tortious act within this state; (4) the contracting to insure any person, property or risk located within this state at the time of contracting; or (5) with respect to actions for [divorce] dissolution of marriage or domestic partnership, separate maintenance or annulment, the circumstance of living in the marital or domestic partnership relationship within the state, notwithstanding subsequent departure from the state, as to all obligations arising from [alimony] spousal or domestic partner support, child support or real or personal property settlements under Chapter [22] 40, Article [7 NMSA 1953] 4 or Chapter 40A, Article 5 NMSA 1978 if one party to the marital or domestic partnership relationship continues to reside in the state. B. Service of process may be made upon any person subject to the jurisdiction of the courts of this state under underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 339 - this section by personally serving the summons upon the defendant outside this state and such service has the same [force and] effect as though service had been personally made within this state. C. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction is based upon this section. D. Nothing contained in this section limits or affects the right to serve any process in any other manner [now or hereafter] provided by law." Section 181. Section 38-6-6 NMSA 1978 (being Laws 1880, Chapter 12, Section 7, as amended) is amended to read: "38-6-6. PRIVILEGED COMMUNICATIONS.-- A. No husband shall be compelled to disclose any communication made by his wife during the marriage, and no wife shall be compelled to disclose any communication made [to her] by her husband during the marriage. B. No domestic partner shall be compelled to disclose any communication made by the other domestic partner during their domestic partnership. [B.] C. An attorney cannot, without the consent of [his] the attorney's client, be examined as to any communication made by the client to [him or his] the attorney or advice given [thereon] by the attorney in the course of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 340 - professional employment; nor can an attorney's secretary, stenographer or clerk be examined, without the consent of [his employer] the attorney, concerning any fact the knowledge of which has been acquired in such capacity. [C.] D. In the courts of the state, no certified public accountant or public accountant shall be permitted to disclose information obtained in the conduct of any examination, audit or other investigation made in a professional capacity or [which] that may have been disclosed to [said] the accountant by a client, without the consent in writing of [such] the client or [his, her or its] the client's successors or legal representatives. [D.] E. If a person offers [himself as] to be a witness and voluntarily testifies with reference to the communications specified in this section, that is a consent to the examination of the person to whom the communications were made as [above] provided in this section." Section 182. Section 40-4A-2 NMSA 1978 (being Laws 1985, Chapter 105, Section 2, as amended) is amended to read: "40-4A-2. DEFINITIONS.--As used in the Support Enforcement Act: A. "authorized quasi-judicial officer" means a person appointed by the court pursuant to Rule 53(a) of the Rules of Civil Procedure for the District Courts; B. "consumer reporting agency" means any person underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 341 - who, for monetary fees, dues or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties and who uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports; C. "delinquency" means any payment under an order for support [which] that has become due and is unpaid; D. "department" means the human services department; E. "income" means any form of periodic payment to an obligor, regardless of source, including [but not limited to] wages, salary, commission, compensation as an independent contractor, workers' compensation benefits, disability benefits, annuity and retirement benefits or other benefits, bonuses, interest or any other payments made by any person, but does not include: (1) any amounts required by law to be withheld, other than creditor claims, including [but not limited to] federal, state and local taxes, social security and other retirement and disability contributions; (2) union dues; (3) any amounts exempted by federal law; or (4) public assistance payments; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 342 - F. "notice of delinquency" means the notice of delinquency as provided for in Section 40-4A-4 NMSA 1978; G. "notice to withhold income" means a notice that requires the payor to withhold from the obligor money necessary to meet the obligor's duty under an order for support and, in the event of a delinquency, requires the payor to withhold an additional amount to be applied [towards] toward the reduction of the delinquency; H. "obligor" means the person who owes a duty to make payments under an order for support; I. "obligee" means any person who is entitled to receive support under an order for support or that person's legal representative; J. "order for support" means any order [which] that has been issued by any judicial, quasi-judicial or administrative entity of competent jurisdiction of any state and which order provides for: (1) periodic payment of funds for the support of a child, a domestic partner or a spouse; (2) modification or resumption of payment of support; (3) payment of delinquency; or (4) reimbursement of support; K. "payor" means any person or entity who provides income to an obligor; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 343 - L. "person" means an individual, corporation, partnership, governmental agency, public office or other entity; and M. "public office" means the state disbursement unit of the department as defined in Section 454B of the Social Security Act." Section 183. Section 40-9-2 NMSA 1978 (being Laws 1993, Chapter 93, Section 3, as amended) is amended to read: "40-9-2. CHILDREN--VISITATION BY GRANDPARENT-- PETITION--MEDIATION.-- A. In rendering a judgment of dissolution of marriage or domestic partnership, legal separation or the existence of the parent and child relationship pursuant to the provisions of the New Mexico Uniform Parentage Act, or at any time after the entry of the judgment, the district court may grant reasonable visitation privileges to a grandparent of a minor child, not in conflict with the child's education or prior established visitation or time-sharing privileges. B. If one or both parents of a minor child are deceased, any grandparent of the minor child may petition the district court for visitation privileges with respect to the minor. The district court may order temporary visitation privileges until a final order regarding visitation privileges is issued by the court. C. If a minor child resided with a grandparent underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 344 - for a period of at least three months and the child was less than six years of age at the beginning of the three-month period and the child was subsequently removed from the grandparent's home by the child's parent or any other person, the grandparent may petition the district court for visitation privileges with respect to the child, if the child's home state is New Mexico, as provided in the [Child Custody Jurisdiction] Uniform Child-Custody Jurisdiction and Enforcement Act. D. If a minor child resided with a grandparent for a period of at least six months and the child was six years of age or older at the beginning of the six-month period and the child was subsequently removed from the grandparent's home by the child's parent or any other person, the grandparent may petition the district court for visitation privileges with respect to the child, if the child's home state is New Mexico, as provided in the [Child Custody Jurisdiction] Uniform Child-Custody Jurisdiction and Enforcement Act. E. A biological grandparent may petition the district court for visitation privileges with respect to a grandchild when the grandchild has been adopted or adoption is sought, pursuant to the provisions of the Adoption Act, by: (1) a stepparent; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 345 - (2) a relative of the grandchild; (3) a person designated to care for the grandchild in the provisions of a deceased parent's will; or (4) a person who sponsored the grandchild at a baptism or confirmation conducted by a recognized religious organization. F. When a minor child is adopted by a stepparent and the parental rights of the natural parent terminate or are relinquished, the biological grandparents are not precluded from attempting to establish visitation privileges. When a petition filed pursuant to the provisions of the Grandparent's Visitation Privileges Act is filed during the pendency of an adoption proceeding, the petition shall be filed as part of the adoption proceedings. The provisions of the Grandparent's Visitation Privileges Act shall have no application in the event of a relinquishment or termination of parental rights in cases of other statutory adoption proceedings. G. When considering a grandparent's petition for visitation privileges with a child, the district court shall assess: (1) any factors relevant to the best interests of the child; (2) the prior interaction between the grandparent and the child; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 346 - (3) the prior interaction between the grandparent and each parent of the child; (4) the present relationship between the grandparent and each parent of the child; (5) time-sharing or visitation arrangements that were in place prior to filing of the petition; (6) the effect the visitation with the grandparent will have on the child; (7) if the grandparent has any prior convictions for physical, emotional or sexual abuse or neglect; and (8) if the grandparent has previously been a full-time caretaker for the child for a significant period. H. The district court may order mediation and evaluation in any matter when a grandparent's visitation privileges with respect to a minor child are at issue. When a judicial district has established a domestic relations mediation program pursuant to the provisions of the Domestic Relations Mediation Act, the mediation shall conform with the provisions of that act. Upon motion and hearing, the district court shall act promptly on the recommendations set forth in a mediation report and consider assessment of mediation and evaluation to the parties. The district court may order temporary visitation privileges until a final order regarding visitation privileges is issued by the court. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 347 - I. When the district court decides that visitation is not in the best interest of the child, the court may issue an order requiring other reasonable contact between the grandparent and the child, including regular communication by telephone, mail or any other reasonable means. J. The provisions of the [Child Custody Jurisdiction] Uniform Child-Custody Jurisdiction and Enforcement Act and Section 30-4-4 NMSA 1978, regarding custodial interference, are applicable to the provisions of the Grandparent's Visitation Privileges Act." Section 184. Section 40-11A-102 NMSA 1978 (being Laws 2009, Chapter 215, Section 1-102) is amended to read: "40-11A-102. DEFINITIONS.--As used in the New Mexico Uniform Parentage Act: A. "acknowledged father" means a man who has established a father-child relationship pursuant to [Article] Part 3 of the New Mexico Uniform Parentage Act; B. "adjudicated father" means a man who has been adjudicated by a court of competent jurisdiction to be the father of a child; C. "alleged father" means a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined. "Alleged father" does not include: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 348 - (1) a presumed father; (2) a man whose parental rights have been terminated or declared not to exist; or (3) a male donor; D. "assisted reproduction" means a method of causing pregnancy other than sexual intercourse. "Assisted reproduction" includes: (1) intrauterine insemination; (2) donation of eggs; (3) donation of embryos; (4) in-vitro fertilization and transfer of embryos; and (5) intracytoplasmic sperm injection; E. "bureau" means the vital records and health statistics bureau of the department of health; F. "child" means a person of any age whose parentage may be determined pursuant to the New Mexico Uniform Parentage Act; G. "commence" means to file the initial pleading seeking an adjudication of parentage in district court; H. "determination of parentage" means the establishment of the parent-child relationship by the signing of a valid acknowledgment of paternity pursuant to Article Part 3 of the New Mexico Uniform Parentage Act or adjudication by the court; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 349 - I. "donor" means a person who produces eggs or sperm used for assisted reproduction, whether or not for consideration. "Donor" does not include: (1) a husband who provides sperm, or a wife who provides eggs, to be used for assisted reproduction by the wife; (2) a domestic partner who provides sperm or eggs to be used for assisted reproduction by a domestic partner who is a woman; [(2)] (3) a woman who gives birth to a child by means of assisted reproduction; or [(3)] (4) a parent pursuant to [Article] Part 7 of the New Mexico Uniform Parentage Act; J. "ethnic or racial group" means, for purposes of genetic testing, a recognized group that a person identifies as all or part of the person's ancestry or that is so identified by other information; K. "genetic testing" means an analysis of genetic markers to exclude or identify a man as the father or a woman as the mother of a child. "Genetic testing" includes an analysis of one or a combination of the following: (1) deoxyribonucleic acid; and (2) blood-group antigens, red-cell antigens, human-leukocyte antigens, serum enzymes, serum proteins or red-cell enzymes; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 350 - L. "man" means a male person of any age; M. "parent" means a person who has established a parent-child relationship pursuant to Section [2-201 of the New Mexico Uniform Parentage Act] 40-11A-201 NMSA 1978; N. "parent-child relationship" means the legal relationship between a child and a parent of the child, including the mother-child relationship and the father-child relationship; O. "paternity index" means the likelihood of paternity calculated by computing the ratio between: (1) the likelihood that the tested man is the father, based on the genetic markers of the tested man, mother and child, conditioned on the hypothesis that the tested man is the father of the child; and (2) the likelihood that the tested man is not the father, based on the genetic markers of the tested man, mother and child, conditioned on the hypothesis that the tested man is not the father of the child and that the father is of the same ethnic or racial group as the tested man; P. "presumed father" means a man who, by operation of law pursuant to Section [2-204 of the New Mexico Uniform Parentage Act] 40-11A-204 NMSA 1978, is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding; Q. "probability of paternity" means the measure, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 351 - for the ethnic or racial group to which the alleged father belongs, of the probability that the man in question is the father of the child, compared with a random, unrelated man of the same ethnic or racial group, expressed as a percentage incorporating the paternity index and a prior probability; R. "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; S. "signatory" means a person who signs or otherwise authenticates a record and is bound by its terms; T. "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States; and U. "support-enforcement agency" means the human services department designated pursuant to Section 27-2-27 NMSA 1978 as the single state agency for the enforcement of child and spousal support obligations pursuant to Title IV D of the federal Social Security Act and any other public official or agency authorized to seek: (1) enforcement of support orders or laws relating to the duty of support; (2) establishment or modification of child support; (3) determination of parentage; or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 352 - (4) location of child-support obligors and their income and assets." Section 185. Section 40-11A-201 NMSA 1978 (being Laws 2009, Chapter 215, Section 2-201) is amended to read: "40-11A-201. ESTABLISHMENT OF PARENT-CHILD RELATIONSHIP.-- A. The mother-child relationship is established between a woman and a child by: (1) the woman's having given birth to the child; (2) an adjudication of the woman's maternity; or (3) adoption of the child by the woman; B. The father-child relationship is established between a man and a child by: (1) an unrebutted presumption of the man's paternity of the child pursuant to Section [2-204 of the New Mexico Uniform Parentage Act] 40-11A-204 NMSA 1978; (2) an effective acknowledgment of paternity by the man pursuant to [Article] Part 3 of the New Mexico Uniform Parentage Act, unless the acknowledgment has been rescinded or successfully challenged; (3) an adjudication of the man's paternity; or (4) adoption of the child by the man [or]. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 353 - [(5)] C. A parent-child relationship is established between a person and a child by the [man's] person's having consented to assisted reproduction by a woman pursuant to [Article] Part 7 of the New Mexico Uniform Parentage Act that resulted in the birth of the child." Section 186. Section 40-11A-204 NMSA 1978 (being Laws 2009, Chapter 215, Section 2-204) is amended to read: "40-11A-204. PRESUMPTION OF PATERNITY.-- A. A man is presumed to be the father of a child if: (1) he and the mother of the child are married to or in a domestic partnership with each other and the child is born during the marriage or domestic partnership; (2) he and the mother of the child were married to or in a domestic partnership with each other and the child is born within three hundred days after the marriage or domestic partnership is terminated by death, annulment, declaration of invalidity or [divorce] dissolution or after a decree of separation; (3) before the birth of the child, he and the mother of the child married each other or entered into a domestic partnership with each other in apparent compliance with law, even if the attempted marriage or domestic partnership is or could be declared invalid, and the child is underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 354 - born during the invalid marriage or domestic partnership or within three hundred days after its termination by death, annulment, declaration of invalidity or [divorce] dissolution or after a decree of separation; (4) after the birth of the child, he and the mother of the child married each other or entered into a domestic partnership with each other in apparent compliance with law, whether or not the marriage or domestic partnership is or could be declared invalid, and he voluntarily asserted his paternity of the child, and: (a) the assertion is in an acknowledgement of paternity on a form provided by the bureau that is filed with the bureau; (b) he agreed to be and is named as the child's father on the child's birth certificate; or (c) he promised in a record to support the child as his own; or (5) for the first two years of the child's life, he resided in the same household with the child and openly held out the child as his own. B. A presumption of paternity established pursuant to this section may be rebutted only by an adjudication pursuant to [Article] Part 6 of the New Mexico Uniform Parentage Act. Rebuttal of a presumption of paternity pursuant to the New Mexico Uniform Parentage Act underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 355 - does not apply to a presumption of paternity established pursuant to the Adoption Act." Section 187. Section 40-11A-637 NMSA 1978 (being Laws 2009, Chapter 215, Section 6-637) is amended to read: "40-11A-637. BINDING EFFECT OF DETERMINATION OF PARENTAGE.-- A. Except as otherwise provided in Subsection B of this section, a determination of parentage is binding on: (1) all signatories to an acknowledgment or denial of paternity as provided in [Article] Part 3 of the New Mexico Uniform Parentage Act; and (2) all parties to an adjudication by a district court acting under circumstances that satisfy the jurisdictional requirements of Section 40-6A-201 NMSA 1978. B. A child is not bound by a determination of parentage pursuant to the New Mexico Uniform Parentage Act unless: (1) the determination was based on an unrescinded acknowledgment of paternity and the acknowledgment is consistent with the results of genetic testing; (2) the adjudication of parentage was based on a finding consistent with the results of genetic testing and the consistency is declared in the determination or is otherwise shown; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 356 - (3) the child was a party or was represented in the proceeding determining parentage by a guardian ad litem; or (4) there was a final order in the proceeding that satisfies the requirements of Paragraph (1), (2) or (3) of Subsection C of this section. C. In a proceeding to dissolve a marriage or a domestic partnership, the district court is deemed to have made an adjudication of the parentage of a child if the district court acts under circumstances that satisfy the jurisdictional requirements of Section 40-6A-201 NMSA 1978, and the final order: (1) expressly identifies a child as a "child of the marriage", "child of the domestic partnership", "issue of the marriage", "issue of the domestic partnership", "child of the parties" or similar words indicating that the husband or domestic partner is the [father] parent of the child; (2) provides for support of the child by the husband or domestic partner unless paternity is specifically disclaimed in the order; or (3) contains a stipulation or admission that the parties are the parents of the child. D. Except as otherwise provided in Subsection B of this section, a determination of parentage may be a defense in a subsequent proceeding seeking to adjudicate underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 357 - parentage by a person who was not a party to the earlier proceeding. E. A party to an adjudication of paternity may challenge the adjudication only pursuant to the laws of New Mexico relating to appeal, vacation of judgments or other judicial review." Section 188. Section 40-11A-705 NMSA 1978 (being Laws 2009, Chapter 215, Section 7-705) is amended to read: "40-11A-705. LIMITATION ON HUSBAND'S OR DOMESTIC PARTNER'S DISPUTE OF [PATERNITY] PARENTAGE.-- A. Except as otherwise provided in Subsection B of this section, the husband or domestic partner of a [wife] woman who gives birth to a child by means of assisted reproduction shall not challenge [his paternity] the husband's or domestic partner's parentage of the child unless: (1) within two years after learning of the birth of the child, [he] the husband or domestic partner commences a proceeding to adjudicate [his paternity] the husband's or domestic partner's parentage; and (2) the district court finds that [he] the husband or domestic partner did not consent to the assisted reproduction, before or after birth of the child. B. A proceeding to adjudicate [paternity] parentage may be maintained at any time if the district court underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 358 - determines that: (1) the husband or domestic partner did not provide sperm for or, before or after the birth of the child, consent to assisted reproduction by [his] the wife or domestic partner; (2) the husband or domestic partner and the mother of the child have not cohabited since the probable time of assisted reproduction; and (3) the husband or domestic partner never openly held out the child as [his] the husband's or domestic partner's own. C. The limitation provided in this section applies to a marriage or domestic partnership dissolved or declared invalid after assisted reproduction." Section 189. Section 40-11A-706 NMSA 1978 (being Laws 2009, Chapter 215, Section 7-706) is amended to read: "40-11A-706. EFFECT OF DISSOLUTION OF MARRIAGE OR DOMESTIC PARTNERSHIP OR WITHDRAWAL OF CONSENT.-- A. If a marriage or domestic partnership is dissolved before placement of eggs, sperm or embryos, the former spouse or former domestic partner is not a parent of the resulting child unless the former spouse or former domestic partner consented in a signed record that if assisted reproduction were to occur after a [divorce] dissolution of the marriage or domestic partnership the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 359 - former spouse or former domestic partner would be a parent of the child. B. Unless otherwise agreed in a signed record, the consent of a woman or a man to assisted reproduction may be withdrawn by that person in a signed record delivered to the other person at any time before placement of eggs, sperm or embryos if the placement has not occurred within one year after the consent. A person who withdraws consent pursuant to this section is not a parent of the resulting child." Section 190. Section 40-11A-707 NMSA 1978 (being Laws 2009, Chapter 215, Section 7-707) is amended to read: "40-11A-707. PARENTAL STATUS OF DECEASED PERSON.--If a person who consented in a record to be a parent by assisted reproduction dies before placement of eggs, sperm or embryos, the deceased person is not a parent of the resulting child unless the deceased spouse or deceased domestic partner consented in a signed record that if assisted reproduction were to occur after death, the deceased person would be a parent of the child." Section 191. Section 40-13-2 NMSA 1978 (being Laws 1987, Chapter 286, Section 2, as amended) is amended to read: "40-13-2. DEFINITIONS.--As used in the Family Violence Protection Act: A. "co-parents" means persons who have a child in common, regardless of whether they have been married or in a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 360 - domestic partnership or have lived together at any time; B. "court" means the district court of the judicial district where an alleged victim of domestic abuse resides or is found; C. "domestic abuse": (1) means an incident of stalking or sexual assault whether committed by a household member or not; (2) means an incident by a household member against another household member consisting of or resulting in: (a) physical harm; (b) severe emotional distress; (c) bodily injury or assault; (d) a threat causing imminent fear of bodily injury by any household member; (e) criminal trespass; (f) criminal damage to property; (g) repeatedly driving by a residence or work place; (h) telephone harassment; (i) harassment; or (j) harm or threatened harm to children as set forth in this paragraph; and (3) does not mean the use of force in self- defense or the defense of another; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 361 - D. "household member" means a spouse or domestic partner; former spouse or former domestic partner; family member, including a relative, parent, present or former stepparent, present or former in-law, child or co-parent of a child; or a person with whom the petitioner has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section; E. "mutual order of protection" means an order of protection that includes provisions that protect both parties; F. "order of protection" means an injunction or a restraining or other court order granted for the protection of a victim of domestic abuse; G. "protected party" means a person protected by an order of protection; and H. "restrained party" means a person who is restrained by an order of protection." Section 192. Section 40-14-5 NMSA 1978 (being Laws 1993, Chapter 296, Section 5) is amended to read: "40-14-5. WHO MAY BE ADOPTED--WHO MAY ADOPT.-- A. Any adult may be adopted. B. Residents who are one of the following may adopt: (1) any adult who has been approved by the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 362 - court as a suitable adoptive parent pursuant to the provisions of the Adult Adoption Act; [or] (2) a married adult, without the spouse of the married adult joining in the adoption if: (a) the non-joining spouse is a parent of the adoptee; (b) the adult who is adopting and the non-joining spouse are legally separated; or (c) the failure of the non-joining spouse to join in the adoption is excused for reasonable circumstances as determined by the court; or (3) an adult in a domestic partnership, without the other domestic partner joining in the adoption if: (a) the non-joining domestic partner is a parent of the adoptee; (b) the adult who is adopting and the non-joining domestic partner are legally separated; or (c) the failure of the non-joining domestic partner to join in the adoption is excused for reasonable circumstances as determined by the court." Section 193. Section 41-2-3 NMSA 1978 (being Laws 1882, Chapter 61, Section 3, as amended) is amended to read: "41-2-3. PERSONAL REPRESENTATIVE TO BRING ACTION-- DAMAGES--DISTRIBUTION OF PROCEEDS.--Every action mentioned in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 363 - Section 41-2-1 NMSA 1978 shall be brought by and in the name of the personal representative of the deceased person, and the jury in every such action may give such damages, compensatory and exemplary, as they deem fair and just, taking into consideration the pecuniary injury resulting from the death to the surviving party entitled to the judgment, or any interest in the judgment, recovered in such action and also having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default. The proceeds of any judgment obtained in any such action shall not be liable for any debt of the deceased; provided the decedent has left a spouse, domestic partner, child, father, mother, brother, sister or child or children of the deceased child, as defined in the [New Mexico] Uniform Probate Code, but shall be distributed as follows: A. if there is a surviving spouse or surviving domestic partner and no child, then to the spouse or domestic partner; B. if there is a surviving spouse or surviving domestic partner and a child or grandchild, then one-half to the surviving spouse or surviving domestic partner and the remaining one-half to the children and grandchildren, the grandchildren taking by right of representation; C. if there is no husband or wife or domestic partner, but a child or grandchild, then to such child and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 364 - grandchild by right of representation; D. if the deceased is a minor, childless and [unmarried] not married or in a domestic partnership, then to the father and mother who shall have an equal interest in the judgment, or if either of them is dead, then to the survivor; E. if there is no father, mother, husband, wife, domestic partner, child or grandchild, then to a surviving brother or sister if there are any; and F. if there is no kindred as named in Subsections A through E of this section, then the proceeds of the judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons." Section 194. Section 41-2-4 NMSA 1978 (being Laws 1882, Chapter 61, Section 1, as amended) is amended to read: "41-2-4. DEATH CAUSED BY RAILROAD, STAGECOACH OR PUBLIC CONVEYANCE--ACTION FOR DAMAGES--DEFENSE.--Whenever any person [shall die] dies from any injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, [whilst] while running, conducting or managing any locomotive, car or train of cars, or of any driver of any stagecoach or other public conveyance, while in charge of the same as driver, and when any passenger [shall die] dies from injury resulting from or occasioned by any defect or insufficiency in any railroad or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 365 - any part thereof, or in any locomotive or car, or in any stagecoach or other public conveyance, the corporation or individual [or individuals] in whose employ any such officer, agent, servant, employee, engineer or driver [shall be] is at the time [such] the injury was committed, or who owns any such railroad, locomotive, car, stagecoach or other public conveyance, at the time any injury is received resulting from or occasioned by any defect, insufficiency, negligence, [unskillfullness] unskillfulness or criminal intent [above declared], shall be liable in damages. Damages may be compensatory and exemplary, for such sum as a jury may deem fair and just, taking into consideration the pecuniary injury [or injuries] resulting from [such] the death to the surviving party [or parties] entitled to the judgment or any interest therein recovered in such action and also having regard to the mitigating or aggravating circumstances attending such defect or insufficiency, which may be sued and recovered; first by the [husband or wife] spouse or domestic partner of the deceased; or second, if there [be] is no [husband or wife] spouse or domestic partner or if [he or she] the spouse or domestic partner fails to sue within six months after [such] the death, then by the minor child or children of the deceased; or third, if [such] the deceased [be] is a minor and [unmarried] not married or in a domestic partnership, then by the father and mother; or fourth, if the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 366 - deceased has reached the age of majority and is [unmarried] not married or in a domestic partnership, by a dependent father or mother or dependent brother or sister, who may join in the suit; and each shall have an equal interest in the judgment; or if either of them [be] is dead, then by the survivor. In the event there are no such persons entitled to sue or in the event suit is not brought by any such persons within nine months after [such] the death, suit may be brought by the personal representative [or representatives] of [such] the deceased person." Section 195. Section 42-10-13 NMSA 1978 (being Laws 1975, Chapter 246, Section 1) is amended to read: "42-10-13. CLAIM OF EXEMPTION OR PRIORITY.--Any person desiring to claim that property is exempt from execution or is subject to execution only after other property is used to satisfy a debt under the provisions of Sections [57-4A-4 and 57-4A-5 NMSA 1953] 40-3-10 and 40-3-11 or 40A-3-10 and 40A-3-12 NMSA 1978 shall file [his] a claim or exemption or priority in the appropriate court, or the right to claim such exemption is waived as between a spouse or domestic partner and the creditor." Section 196. Section 43-1-12 NMSA 1978 (being Laws 1977, Chapter 279, Section 11, as amended) is amended to read: "43-1-12. EXTENDED COMMITMENT OF ADULTS.-- underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 367 - A. A physician or evaluation facility may file a petition for extended commitment within twenty-one days after the beginning of the thirty-day commitment. The petition shall explain the necessity for extended commitment, specify the treatment that has been provided during the evaluation and include an individual treatment plan for the proposed commitment period. The petition shall list the prospective witnesses for commitment and a summary of the matters to which they will testify. Copies of the petition shall be served on the client, the client's guardian, and treatment guardian if one has been appointed, and the client's attorney. B. A hearing shall be held upon the petition prior to the expiration of the thirty-day commitment period, at which the client shall have all rights granted to the client under Section 43-1-11 NMSA 1978 and in addition shall have a right to a trial by a six-person jury, if requested, and to an expeditious appeal, unless waived. C. A court-appointed guardian for an adult involved in an involuntary commitment proceeding shall have automatic standing to appear at all stages of the proceeding and shall be allowed to testify by telephone or through affidavit if circumstances make live testimony too burdensome. D. The court shall include in its findings the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 368 - guardian's opinion regarding the need for involuntary treatment or a statement detailing the efforts made to ascertain the guardian's opinion. E. If, at the conclusion of the hearing, the fact-finder determines by clear and convincing evidence that the client presents a likelihood of harm to the client's self or to others, that extended treatment is likely to improve the client's condition and that the proposed extended commitment is consistent with the least drastic means principle, the court shall order commitment of the client for a period not to exceed six months, except that when the client has been committed for two consecutive periods of commitment, any commitment commencing thereafter shall not exceed one year. At the expiration of the commitment order, the client may be detained only after a new commitment hearing, unless waived after consultation with the client's attorney, and entry of a new order for commitment not to exceed six months. F. A client involuntarily referred for treatment pursuant to this section shall be entitled to a reexamination of the order for the client's involuntary referral for treatment on the client's own petition, or that of the client's legal guardian, parent, spouse, domestic partner, relative or friend, to the district court of the county in which the client resides or is detained. Upon receipt of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 369 - petition, the court shall conduct a proceeding in accordance with this section, except that a proceeding shall not be required to be conducted if the petition is filed sooner than sixty days after the issuance of the order for involuntary referral for treatment or sooner than sixty days after the filing of a previous petition under this subsection. G. Nothing in this section shall limit the right of a client to petition the court for a writ of habeas corpus. H. Nothing in this code shall prohibit a client from seeking voluntary admission under Section 43-1-14 NMSA 1978. I. No mental health treatment facility is required to detain, treat or provide services to a client when the client does not require such detention, treatment or services." Section 197. Section 43-1-13 NMSA 1978 (being Laws 1977, Chapter 279, Section 12, as amended) is amended to read: "43-1-13. INVOLUNTARY COMMITMENT OF DEVELOPMENTALLY DISABLED ADULTS TO RESIDENTIAL CARE.-- A. A guardian appointed pursuant to the Uniform Probate Code may file an application with an evaluation facility seeking residential habilitation services for the protected person. The application shall set forth the basis for the guardian's belief that residential habilitation is underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 370 - necessary and shall include a copy of pertinent medical and psychological evaluations that have been completed. B. Upon receipt of an application filed according to Subsection A of this section, an evaluation facility may accept the proposed client for a period of evaluation and treatment not to exceed fourteen days. An evaluation facility shall prepare an individualized habilitation plan that shall be consistent with the least drastic means principle. C. If the habilitation plan recommends residential services, the evaluation facility shall file with the court a petition for extended residential placement. Upon receipt of the petition, the court shall appoint an attorney to represent the proposed client. Notice of the hearing scheduled on the petition and a copy of the habilitation plan shall be given to the proposed client, the client's attorney and the client's guardian. The petition shall contain a list of the names and addresses of proposed witnesses. D. At the hearing on the petition, the proposed client shall be represented by counsel and shall have the right to present evidence on the proposed client's behalf, including testimony of a developmental disability professional of the proposed client's choosing; to cross- examine witnesses; to be present at the hearing; and to trial by a six-person jury, if requested. A complete record of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 371 - hearing shall be made. There shall be a right to an expeditious appeal. E. The guardian of an adult involved in a commitment proceeding for extended residential habilitation services shall have automatic standing to appear at all stages of the proceeding and shall be allowed to testify by telephone or through affidavit if circumstances make live testimony too burdensome. F. The court shall include in its findings the guardian's opinion regarding the need for residential habilitation services or a statement detailing the efforts made to ascertain the guardian's opinion. G. The court shall order residential placement of the proposed client if it is established by clear and convincing evidence that the proposed client has a developmental disability that creates an imminent likelihood of serious harm to the proposed client's self or to others, or the person is so greatly disabled that residential services would be in the person's best interest and that such residential placement is, in the person's case, the least drastic means. The court's order of residential placement shall be for a period not to exceed six months. At the expiration of the commitment order, the client may be detained only after a new commitment hearing, unless waived after consultation with the client's attorney, and entry of a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 372 - new order for commitment not to exceed six months. H. The court shall order placement that is least restrictive to the client and may order attendance and participation as a nonresident in habilitation programs conducted at residential or nonresidential facilities. I. Any client involuntarily referred for habilitation treatment shall be entitled to a reexamination of the order for the client's involuntary referral for habilitation and treatment on the client's own petition, or that of the client's legal guardian, parent, spouse, domestic partner, relative or friend, to the district court of the county in which the client resides or is detained. Upon receipt of the petition, the court shall conduct or cause to be conducted by a special commissioner a proceeding in accordance with this section, except that a proceeding shall not be required to be conducted if the petition is filed sooner than sixty days after the issuance of the order for involuntary referral for habilitation and treatment or sooner than sixty days after the filing of a previous petition under this subsection. J. Nothing in this section shall limit the right of a client to petition the court for a writ of habeas corpus. K. No developmental disabilities treatment or habilitation facility is required to detain, treat or provide services to a client when the client does not appear to underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 373 - require detention, treatment or habilitation." Section 198. Section 44-5-3 NMSA 1978 (being Laws 1856- 1857, Page 36, as amended) is amended to read: "44-5-3. ACTION MAINTAINABLE BY SPOUSE OR DOMESTIC PARTNER, CHILDREN, HEIRS, EXECUTORS, ADMINISTRATORS AND CREDITORS [OR] OF LOSER.--The spouse or domestic partner, children, heirs, executors, administrators and creditors of the person losing may have the same remedy against the winner as provided in Sections [22-10-1 and 22-10-2 NMSA 1953] 44-5-1 and 44-5-2 NMSA 1978." Section 199. Section 44-5-14 NMSA 1978 (being Laws 1856-1857, Page 38, as amended) is amended to read: "44-5-14. ACTION FOR RECOVERY--IMMUNITY.--[All persons] A person who [shall claim] claims money or property lost at gaming, or, when [said] the money or property may be claimed by [his] the person's spouse, domestic partner, child, relation or friend, [said] that person, although [he] that person may have gambled, is [hereby] exempted from the punishment imposed by the laws prohibiting and restraining gaming." Section 200. Section 45-1-201 NMSA 1978 (being Laws 1993, Chapter 174, Section 4, as amended) is amended to read: "45-1-201. DEFINITIONS.-- A. As used in the Uniform Probate Code, unless the context otherwise requires: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 374 - (1) "agent" includes an attorney-in-fact under a durable or nondurable power of attorney, an individual authorized to make decisions concerning another's health care and an individual authorized to make decisions for another under a natural death act; (2) "application" means a written request to the probate court for an order of informal probate or appointment pursuant to Sections 45-3-301 through 45-3-311 NMSA 1978; (3) "beneficiary", as it relates to a trust beneficiary, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer; as it relates to a charitable trust, includes any person entitled to enforce the trust; as it relates to a "beneficiary of a beneficiary designation", refers to a beneficiary of an insurance or annuity policy, of an account with POD designation, of a security registered in beneficiary form (TOD) or of a pension, profit-sharing, retirement or similar benefit plan or other nonprobate transfer at death; and, as it relates to a "beneficiary designated in a governing instrument", includes a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a donee, appointee or taker in default of a power of appointment or a person in whose favor a power of attorney or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 375 - a power held in any individual, fiduciary or representative capacity is exercised; (4) "beneficiary designation" refers to a governing instrument naming a beneficiary of an insurance or annuity policy, of an account with POD designation, of a security registered in beneficiary form (TOD) or of a pension, profit-sharing, retirement or similar benefit plan or other nonprobate transfer at death; (5) "child" includes an individual entitled to take as a child pursuant to the Uniform Probate Code by intestate succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild or any more remote descendant; (6) "claims", in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person, whether arising in contract, in tort or otherwise and liabilities of the estate that arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. "Claims" does not include estate or inheritance taxes or demands or disputes regarding title of a decedent, an incapacitated person or a minor protected person to specific assets alleged to be included in the estate; (7) "conservator" means a person who is appointed by a court to manage the property or financial underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 376 - affairs or both of an incapacitated person or a minor protected person; (8) "descendant" of an individual means all of the individual's descendants of all generations, with the relationship of parent and child at each generation being determined by the definition of child and parent contained in the Uniform Probate Code; (9) "devise", when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will; (10) "devisee" means a person designated in a will to receive a devise. For the purposes of Chapter 45, Article 3 NMSA 1978, in the case of a devise to an existing trust or trustee or to a trustee or trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees; (11) "distributee" means a person who has received property of a decedent from the decedent's personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in the testamentary trustee's hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 377 - distributee of the personal representative. For the purposes of this paragraph, "testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the devised assets; (12) "estate" includes the property of the decedent, trust or other person whose affairs are subject to the Uniform Probate Code as originally constituted and as it exists from time to time during administration; (13) "exempt property" means that property of a decedent's estate that is described in Section 45-2-403 NMSA 1978; (14) "fiduciary" includes a personal representative, guardian, guardian ad litem, conservator and trustee; (15) "foreign personal representative" means a personal representative appointed by another jurisdiction; (16) "formal proceedings" means proceedings conducted before a judge with notice to interested persons; (17) "governing instrument" means a deed, will, trust, insurance or annuity policy, account with POD designation, security registered in beneficiary form (TOD), pension, profit-sharing, retirement or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney or a dispositive, appointive or nominative instrument of a similar type; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 378 - (18) "guardian" means a person who has qualified to provide for the care, custody or control of the person of a minor or incapacitated person pursuant to testamentary or court appointment, but excludes one who is merely a guardian ad litem; (19) "guardian ad litem" means a person appointed by the district court to represent and protect the interests of a minor or an incapacitated person in connection with litigation or any other court proceeding; (20) "heirs", except as controlled by Section 45-2-711 NMSA 1978, means persons, including the surviving spouse or surviving domestic partner and the state, who are entitled under the statutes of intestate succession to the property of a decedent; (21) "incapacitated person" means an individual described in Section 45-5-101 NMSA 1978; (22) "informal proceedings" means those proceedings conducted without notice to interested persons before the probate court for probate of a will or appointment of a personal representative, except as provided for in Section 45-3-306 NMSA 1978; (23) "interested person" includes heirs, devisees, children, spouses or domestic partners, creditors, beneficiaries and any others having a property right in or claim against a trust estate or the estate of a decedent, a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 379 - minor protected person or an incapacitated person. "Interested person" also includes persons having priority for appointment as personal representatives and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, a proceeding. "Interested person" does not apply to the provisions of Chapter 45, Article 5 NMSA 1978; (24) "issue" of a person means all of the person's descendants of all generations, with the relationship of parent and child at each generation being determined by the definition of child and parent contained in the Uniform Probate Code; (25) "lease" includes an oil, gas or other mineral lease; (26) "letters" includes letters testamentary, letters of guardianship, letters of administration and letters of conservatorship; (27) "minor" means a person who has not reached eighteen years of age; (28) "mortgage" means any conveyance, agreement or arrangement in which property is encumbered or used as security; (29) "nonresident decedent" means a decedent underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 380 - who was domiciled in another jurisdiction at the time of death; (30) "organization" means a corporation, business trust, estate, trust, partnership, joint venture, association, government or governmental subdivision or agency or any other legal or commercial entity; (31) "parent" includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent pursuant to the Uniform Probate Code by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent or grandparent; (32) "payor" means a trustee, insurer, business entity, employer, government, governmental agency or subdivision or any other person authorized or obligated by law or a governing instrument to make payments; (33) "person" means an individual or an organization; (34) "personal representative" includes executor, administrator, successor personal representative, special administrator and persons who perform substantially the same function under the law governing their status. "General personal representative" excludes special administrator; (35) "petition" means a written request to the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 381 - probate court for an order after notice; (36) "proceeding" includes action at law and suit in equity; (37) "property" includes both real and personal property or any interest therein and means anything that may be the subject of ownership; (38) "protected person" is as defined in Section 45-5-101 NMSA 1978; (39) "protective proceeding" means a proceeding described in Section 45-5-101 NMSA 1978; (40) "security" includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for or any warrant or right to subscribe to or purchase any of the foregoing; (41) "settlement", in reference to a decedent's estate, includes the full process of administration, distribution and closing; (42) "special administrator" means a personal underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 382 - representative as described by Sections 45-3-614 through 45-3-618 NMSA 1978; (43) "state" means a state of the United States, the District of Columbia, the commonwealth of Puerto Rico or any territory or insular possession subject to the jurisdiction of the United States; (44) "successor personal representative" means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative; (45) "successors" means persons, other than creditors, who are entitled to property of a decedent under the decedent's will or the Uniform Probate Code; (46) "supervised administration" refers to the proceedings described in Article III, Part 5 of the Uniform Probate Code; (47) "survive" means that an individual has neither predeceased an event, including the death of another individual, nor is deemed to have predeceased an event pursuant to Section 45-2-104 or 45-2-702 NMSA 1978. "Survive" includes its derivatives, such as "survives", "survived", "survivor" and "surviving"; (48) "testacy proceeding" means a proceeding to establish a will or determine intestacy; (49) "testator" includes an individual of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 383 - either sex; (50) "trust" includes an express trust, private or charitable, with additions thereto, wherever and however created. "Trust" also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. "Trust" excludes other constructive trusts and excludes resulting trusts, conservatorships, personal representatives, trust accounts as defined in Article VI of the Uniform Probate Code, custodial arrangements, including those created under the Uniform Transfer to Minors Act, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts, trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions or employee benefits of any kind and any arrangement under which a person is nominee or escrowee for another; (51) "trustee" includes an original, additional or successor trustee, whether or not appointed or confirmed by court; and (52) "will" includes codicil and any testamentary instrument that merely appoints a personal representative, revokes or revises another will, nominates a guardian or expressly excludes or limits the right of an individual or class to succeed to property of the decedent underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 384 - passing by intestate succession. "Will" does not include a holographic will. B. The definitions in Subsection A of this section are made subject to additional definitions contained in subsequent articles that are applicable to specific articles." Section 201. Section 45-2-102 NMSA 1978 (being Laws 1975, Chapter 257, Section 2-102) is amended to read: "45-2-102. SHARE OF THE SPOUSE OR DOMESTIC PARTNER.-- The intestate share of the surviving spouse or surviving domestic partner is determined as follows: A. as to separate property: (1) if there is no surviving issue of the decedent, the entire intestate estate; or (2) if there is surviving issue of the decedent, one-fourth of the intestate estate; and B. as to community property, the one-half of the community property as to which the decedent could have exercised the power of testamentary disposition passes to the surviving spouse or surviving domestic partner." Section 202. Section 45-2-103 NMSA 1978 (being Laws 1993, Chapter 174, Section 6) is amended to read: "45-2-103. SHARE OF HEIRS OTHER THAN SURVIVING SPOUSE OR SURVIVING DOMESTIC PARTNER.--Any part of the intestate estate not passing to the decedent's surviving spouse or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 385 - surviving domestic partner pursuant to Section 45-2-102 NMSA 1978, or the entire intestate estate if there is no surviving spouse or surviving domestic partner, passes in the following order to the individuals designated below who survive the decedent: A. to the decedent's descendants by representation; B. if there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent; C. if there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation; and D. if there is no surviving descendant, parent or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation, and the other half passes to the decedent's maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 386 - Section 203. Section 45-2-114 NMSA 1978 (being Laws 1993, Chapter 174, Section 16, as amended) is amended to read: "45-2-114. PARENT AND CHILD RELATIONSHIP.-- A. Except as provided in Subsections B and C of this section, for purposes of intestate succession by, through or from a person, an individual is the child of [his] the individual's natural parents, regardless of their marital or domestic partnership status. The parent and child relationship may be established under the New Mexico Uniform Parentage Act. B. An adopted individual is the child of [his] the individual's adopting parent or parents and not of [his] the individual's natural parents, but adoption of a child by the spouse or domestic partner of either natural parent has no effect on: (1) the relationship between the child and that natural parent; or (2) the right of the child or a descendant of the child to inherit from or through that nonsevered natural parent. C. Inheritance from or through a child by either natural parent or [his] the child's kindred is precluded unless that natural parent has openly treated the child as [his] the natural parent's and has not refused to support the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 387 - child." Section 204. Section 45-2-301 NMSA 1978 (being Laws 1993, Chapter 174, Section 17, as amended) is amended to read: "45-2-301. ENTITLEMENT OF SPOUSE OR DOMESTIC PARTNER--PREMARITAL WILL OR PRE-DOMESTIC PARTNERSHIP WILL.-- A. If a testator's surviving spouse or surviving domestic partner married or entered into a domestic partnership with the testator after the testator executed [his] the testator's will, the surviving spouse or surviving domestic partner is entitled to receive, as an intestate share, no less than the value of the share of the estate [he] that the surviving spouse or surviving domestic partner would have received if the testator had died intestate as to that portion of the testator's estate, if any, that neither is devised to a child of the testator who was born before the testator married the surviving spouse or entered into a domestic partnership with the surviving domestic partner and who is not a child of the surviving spouse or surviving domestic partner nor is devised to a descendant of such a child or passes pursuant to Section 45-2-603 or 45-2-604 NMSA 1978 to such a child or to a descendant of such a child, unless: (1) it appears from the will or other evidence that the will was made in contemplation of the testator's underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 388 - marriage to the surviving spouse or domestic partnership with the surviving domestic partner; (2) the will expresses the intention that it is to be effective notwithstanding any subsequent marriage or domestic partnership; or (3) the testator provided for the spouse or domestic partner by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence. B. In satisfying the share provided by this section, devises made by the will to the testator's surviving spouse or surviving domestic partner, if any, are applied first, and other devises, other than a devise to a child of the testator who was born before the testator married the surviving spouse or entered into a domestic partnership with the surviving domestic partner and who is not a child of the surviving spouse or surviving domestic partner or a devise or substitute gift pursuant to Section 45-2-603 or 45-2-604 NMSA 1978 to a descendant of such a child, abate as provided in Section 45-3-902 NMSA 1978." Section 205. Section 45-2-402 NMSA 1978 (being Laws 1993, Chapter 174, Section 20, as amended) is amended to read: "45-2-402. FAMILY ALLOWANCE.--A decedent's surviving underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 389 - spouse or surviving domestic partner is entitled to a family allowance of thirty thousand dollars ($30,000). If there is no surviving spouse or surviving domestic partner, each minor child and each dependent child of the decedent is entitled to a family allowance amounting to thirty thousand dollars ($30,000) divided by the number of minor and dependent children of the decedent. The family allowance is exempt from and has priority over all claims against the estate. Family allowance is in addition to any share passing to the surviving spouse or surviving domestic partner or minor or dependent children by intestate succession or by the decedent's will, unless otherwise provided by the decedent in the will or other governing instrument." Section 206. Section 45-2-403 NMSA 1978 (being Laws 1993, Chapter 174, Section 21, as amended) is amended to read: "45-2-403. PERSONAL PROPERTY ALLOWANCE.--In addition to the family allowance, the decedent's surviving spouse or surviving domestic partner is entitled from the estate to a value, not exceeding fifteen thousand dollars ($15,000) in excess of any security interests therein, in household furniture, automobiles, furnishings, appliances and personal effects. If there is no surviving spouse or surviving domestic partner, the decedent's children who are devisees under the will, who are entitled to a share of the estate underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 390 - pursuant to Section 45-2-302 NMSA 1978 or, if there is no will, who are intestate heirs are entitled jointly to the same value. If encumbered chattels are selected and the value in excess of security interests plus that of other exempt property is less than fifteen thousand dollars ($15,000) or if there is not fifteen thousand dollars ($15,000) worth of exempt property in the estate, the spouse, domestic partner or children are entitled to other assets of the estate, if any, to the extent necessary to make up the fifteen thousand dollar ($15,000) value. Rights to specific property for the family allowance and assets needed to make up a deficiency in the property have priority over all claims against the estate, but the right to any assets to make up a deficiency of exempt property abates as necessary to permit earlier payment of the family allowance. These rights are in addition to any benefit or share passing to the surviving spouse, surviving domestic partner or surviving children by intestate succession or by the decedent's will, unless otherwise provided by the decedent in the will or other governing instrument." Section 207. Section 45-2-405 NMSA 1978 (being Laws 1993, Chapter 174, Section 23) is amended to read: "45-2-405. SOURCE, DETERMINATION AND DOCUMENTATION.--If the estate is otherwise sufficient, property specifically devised may not be used to satisfy rights to family allowance underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 391 - or personal property allowance. Subject to this restriction, the surviving spouse or surviving domestic partner, guardians of minor children or children who are adults may select property of the estate as family allowance and personal property allowance. The personal representative may make those selections if the surviving spouse or surviving domestic partner, the children or the guardians of the minor children are unable or fail to do so within a reasonable time or there is no guardian of a minor child. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as family allowance or personal property allowance. The personal representative or an interested person aggrieved by any selection, determination, payment, proposed payment or failure to act under this section may petition the court for appropriate relief, which may include a family allowance or personal property allowance other than that which the personal representative determined or could have determined." Section 208. Section 45-2-407 NMSA 1978 (being Laws 1995, Chapter 210, Section 10) is amended to read: "45-2-407. WAIVER OF RIGHTS.-- A. The rights of the surviving spouse or surviving domestic partner to family allowance and personal property allowance, or either of them, may be waived, wholly or partially, before or after the marriage or the domestic underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 392 - partnership, by a written contract, agreement or waiver signed by the surviving spouse or surviving domestic partner. B. A [surviving spouse's] waiver by a surviving spouse or surviving domestic partner is not enforceable if the surviving spouse or surviving domestic partner proves that: (1) the surviving spouse or surviving domestic partner did not execute the waiver voluntarily; or (2) the waiver was unconscionable when it was executed and, before execution of the waiver, the surviving spouse or surviving domestic partner: (a) was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent; (b) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and (c) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent. C. An issue of unconscionability or voluntariness of a waiver is for decision by the court as a matter of law. D. Unless it provides to the contrary, a waiver of "all rights", or equivalent language, in the property or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 393 - estate of a present or prospective spouse or a present or prospective domestic partner or a complete property settlement entered into after or in anticipation of separation or [divorce] dissolution of marriage or domestic partnership is a waiver of all rights of family allowance and personal property allowance by each spouse or domestic partner in the property of the other and a renunciation by each of all benefits that would otherwise pass to each from the other by intestate succession or by virtue of any will executed before the waiver or property settlement." Section 209. Section 45-2-603 NMSA 1978 (being Laws 1993, Chapter 174, Section 42, as amended) is amended to read: "45-2-603. ANTILAPSE--DECEASED DEVISEE--CLASS GIFTS.-- A. As used in this section: (1) "alternative devise" means a devise that is expressly created by the will and, under the terms of the will, can take effect instead of another devise on the happening of one or more events, including survival of the testator or failure to survive the testator, whether an event is expressed in condition-precedent, condition-subsequent or any other form. A residuary clause constitutes an alternative devise with respect to a nonresiduary devise only if the will specifically provides that, upon lapse or failure, the nonresiduary devise, or nonresiduary devises in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 394 - general, pass under the residuary clause; (2) "class member" includes an individual who fails to survive the testator but who would have taken under a devise in the form of a class gift had [he] the class member survived the testator; (3) "devise" includes an alternative devise, a devise in the form of a class gift and an exercise of a power of appointment; (4) "devisee" includes: (a) a class member if the devise is in the form of a class gift; (b) an individual or class member who was deceased at the time the testator executed [his] the testator's will as well as an individual or class member who was then living but who failed to survive the testator; and (c) an appointee under a power of appointment exercised by the testator's will; (5) "stepchild" means a child of the surviving, deceased or former spouse or the surviving, deceased or former domestic partner of the testator or of the donor of a power of appointment and not of the testator or donor; (6) "surviving devisee" or "surviving descendant" means a devisee or a descendant who neither predeceased the testator nor is deemed to have predeceased underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 395 - the testator pursuant to the provisions of Section 45-2-702 NMSA 1978; and (7) "testator" includes the donee of a power of appointment if the power is exercised in the testator's will. B. If a devisee fails to survive the testator and is a grandparent, a descendant of a grandparent or a stepchild of either the testator or the donor of a power of appointment exercised by the testator's will, the following apply: (1) except as provided in Paragraph (4) of this subsection, if the devise is not in the form of a class gift and the deceased devisee leaves surviving descendants, a substitute gift is created in the devisee's surviving descendants. They take by representation the property to which the devisee would have been entitled had the devisee survived the testator; (2) except as provided in Paragraph (4) of this subsection, if the devise is in the form of a class gift, other than a devise to "issue", "descendants", "heirs of the body", "heirs", "next of kin", "relatives" or "family" or a class described by language of similar import, a substitute gift is created in the surviving descendants of any deceased devisee. The property to which the devisees would have been entitled had all of them survived the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 396 - testator passes to the surviving devisees and the surviving descendants of the deceased devisees. Each surviving devisee takes the share to which [he] the surviving devisee would have been entitled had the deceased devisees survived the testator. Each deceased devisee's surviving descendants who are substituted for the deceased devisee take by representation the share to which the deceased devisee would have been entitled had the deceased devisee survived the testator. For the purposes of this paragraph, "deceased devisee" means a class member who failed to survive the testator and left one or more surviving descendants; (3) for the purposes of Section 45-2-601 NMSA 1978, words of survivorship, such as in a devise to an individual "if [he] the individual survives me" or in a devise to "my surviving children" are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section; (4) if the will creates an alternative devise with respect to a devise for which a substitute gift is created by Paragraph (1) or (2) of this subsection, the substitute gift is superseded by the alternative devise only if an expressly designated devisee of the alternative devise is entitled to take under the will; and (5) unless the language creating a power of appointment expressly excludes the substitution of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 397 - descendants of an appointee for the appointee, a surviving descendant of a deceased appointee of a power of appointment can be substituted for the appointee pursuant to the provisions of this section whether or not the descendant is an object of the power. C. If, pursuant to the provisions of Subsection B of this section, substitute gifts are created and not superseded with respect to more than one devise and the devises are alternative devises, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows: (1) except as provided in Paragraph (2) of this subsection, the devised property passes under the primary substitute gift; and (2) if there is a younger-generation devise, the devised property passes under the younger-generation substitute gift and not under the primary substitute gift. D. As used in [Subsections C and D of] this section: (1) "primary devise" means the devise that would have taken effect had all the deceased devisees of the alternative devises who left surviving descendants survived the testator; (2) "primary substitute gift" means the substitute gift created with respect to the primary devise; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 398 - (3) "younger-generation devise" means a devise that: (a) is to a descendant of a devisee of the primary devise; (b) is an alternative devise with respect to the primary devise; (c) is a devise for which a substitute gift is created; and (d) would have taken effect had all the deceased devisees who left surviving descendants survived the testator except the deceased devisee or devisees of the primary devise; and (4) "younger-generation substitute gift" means the substitute gift created with respect to the younger- generation devise." Section 210. Section 45-2-705 NMSA 1978 (being Laws 1993, Chapter 174, Section 53) is amended to read: "45-2-705. CLASS GIFTS CONSTRUED TO ACCORD WITH INTESTATE SUCCESSION.-- A. Adopted individuals and individuals born out of wedlock or outside of a domestic partnership and their respective descendants if appropriate to the class are included in class gifts and other terms of relationship in accordance with the rules for intestate succession. Terms of relationship that do not differentiate relationships by blood underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 399 - from those by affinity, such as "uncles", "aunts", "nieces" or "nephews", are construed to exclude relatives by affinity. Terms of relationship that do not differentiate relationships by the half blood from those by the whole blood, such as "brothers", "sisters", "nieces" or "nephews", are construed to include both types of relationships. B. In addition to the requirements of Subsection A of this section, in construing a dispositive provision of a transferor who is not the natural parent, an individual born to the natural parent is not considered the child of that parent unless the individual lived while a minor as a regular member of the household of that natural parent or of that parent's parent, brother, sister, spouse, domestic partner or surviving spouse or surviving domestic partner. C. In addition to the requirements of Subsection A of this section, in construing a dispositive provision of a transferor who is not the adopting parent, an adopted individual is not considered the child of the adopting parent unless the adopted individual lived while a minor, either before or after the adoption, as a regular member of the household of the adopting parent." Section 211. Section 45-2-706 NMSA 1978 (being Laws 1993, Chapter 174, Section 54, as amended) is amended to read: "45-2-706. LIFE INSURANCE--RETIREMENT PLAN--ACCOUNT underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 400 - WITH POD DESIGNATION--TRANSFER-ON-DEATH REGISTRATION-- DECEASED BENEFICIARY.-- A. As used in this section: (1) "alternative beneficiary designation" means a beneficiary designation that is expressly created by the governing instrument and, under the terms of the governing instrument, can take effect instead of another beneficiary designation on the happening of one or more events, including survival of the decedent or failure to survive the decedent, whether an event is expressed in condition-precedent, condition-subsequent or any other form; (2) "beneficiary" means the beneficiary of a beneficiary designation under which the beneficiary must survive the decedent and includes: (a) a class member if the beneficiary designation is in the form of a class gift; and (b) an individual or class member who was deceased at the time the beneficiary designation was executed as well as an individual or class member who was then living but who failed to survive the decedent, but excludes a joint tenant of a joint tenancy with the right of survivorship and a party to a joint and survivorship account; (3) "beneficiary designation" includes an alternative beneficiary designation and a beneficiary designation in the form of a class gift; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 401 - (4) "class member" includes an individual who fails to survive the decedent but who would have taken under a beneficiary designation in the form of a class gift had [he] the individual survived the decedent; (5) "stepchild" means a child of the decedent's surviving, deceased or former spouse or surviving, deceased or former domestic partner and not of the decedent; and (6) "surviving beneficiary" or "surviving descendant" means a beneficiary or a descendant who neither predeceased the decedent nor is deemed to have predeceased the decedent pursuant to the provisions of Section 45-2-702 NMSA 1978. B. If a beneficiary fails to survive the decedent and is a grandparent, a descendant of a grandparent or a stepchild of the decedent, the following apply: (1) except as provided in Paragraph (4) of this subsection, if the beneficiary designation is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary's surviving descendants. They take by representation the property to which the beneficiary would have been entitled had the beneficiary survived the decedent; (2) except as provided in Paragraph (4) of this subsection, if the beneficiary designation is in the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 402 - form of a class gift, other than a beneficiary designation to "issue", "descendants", "heirs of the body", "heirs", "next of kin", "relatives" or "family" or a class described by language of similar import, a substitute gift is created in the surviving descendants of any deceased beneficiary. The property to which the beneficiaries would have been entitled had all of them survived the decedent passes to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries. Each surviving beneficiary takes the share to which [he] the surviving beneficiary would have been entitled had the deceased beneficiaries survived the decedent. Each deceased beneficiary's surviving descendants who are substituted for the deceased beneficiary take by representation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the decedent. For the purposes of this paragraph, "deceased beneficiary" means a class member who failed to survive the decedent and left one or more surviving descendants; (3) for the purposes of Section 45-2-701 NMSA 1978, words of survivorship, such as in a beneficiary designation to an individual "if [he] the individual survives me" or in a beneficiary designation to "my surviving children", are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 403 - application of this section; and (4) if a governing instrument creates an alternative beneficiary designation with respect to a beneficiary designation for which a substitute gift is created by Paragraph (1) or (2) of this subsection, the substitute gift is superseded by the alternative beneficiary designation only if an expressly designated beneficiary of the alternative beneficiary designation is entitled to take. C. If, pursuant to the provisions of Subsection B of this section, substitute gifts are created and not superseded with respect to more than one beneficiary designation and the beneficiary designations are alternative beneficiary designations, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows: (1) except as provided in Paragraph (2) of this subsection, the property passes under the primary substitute gift; and (2) if there is a younger-generation beneficiary designation, the property passes under the younger-generation substitute gift and not under the primary substitute gift. D. As used in Subsections C and D of this section: (1) "primary beneficiary designation" means the beneficiary designation that would have taken effect had underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 404 - all the deceased beneficiaries of the alternative beneficiary designations who left surviving descendants survived the decedent; (2) "primary substitute gift" means the substitute gift created with respect to the primary beneficiary designation; (3) "younger-generation beneficiary designation" means as a beneficiary designation that: (a) is to a descendant of a beneficiary of the primary beneficiary designation; (b) is an alternative beneficiary designation with respect to the primary beneficiary designation; (c) is a beneficiary designation for which a substitute gift is created; and (d) would have taken effect had all the deceased beneficiaries who left surviving descendants survived the decedent except the deceased beneficiary or beneficiaries of the primary beneficiary designation; and (4) "younger-generation substitute gift" means the substitute gift created with respect to the younger- generation beneficiary designation. E. A payor is protected from liability in making payments under the terms of the beneficiary designation until the payor has received written notice of a claim to a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 405 - substitute gift under this section. Payment made before the receipt of written notice of a claim to a substitute gift under this section discharges the payor, but not the recipient, from all claims for the amounts paid. A payor is liable for a payment made after the payor has received written notice of the claim. A recipient is liable for a payment received whether or not written notice of the claim is given. The written notice of the claim must be mailed to the payor's main office or home by registered or certified mail, return receipt requested, or served upon the payor in the same manner as a summons in a civil action. Upon receipt of written notice of the claim, a payor may pay any amount owed by it to the court having jurisdiction of the probate proceedings relating to the decedent's estate or, if no proceedings have been commenced, to the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. The court shall hold the funds and, upon its determination under this section, shall order disbursement in accordance with the determination. Payment made to the court discharges the payor from all claims for the amounts paid. F. A person who purchases property for value and without notice or who receives a payment or other item of property in partial or full satisfaction of a legally underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 406 - enforceable obligation is neither obligated pursuant to the provisions of this section to return the payment, item of property or benefit nor is liable pursuant to the provisions of this section for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property or any other benefit to which the person is not entitled pursuant to the provisions of this section is obligated to return the payment, item of property or benefit or is personally liable for the amount of the payment or the value of the item of property or benefit to the person who is entitled to it pursuant to the provisions of this section. G. If this section or any part of this section is preempted by federal law with respect to a payment, an item of property or any other benefit covered by this section, a person who, not for value, receives the payment, item of property or any other benefit to which the person is not entitled pursuant to the provisions of this section is obligated to return the payment, item of property or benefit or is personally liable for the amount of the payment or the value of the item of property or benefit to the person who would have been entitled to it were this section or part of this section not preempted." Section 212. Section 45-2-711 NMSA 1978 (being Laws 1993, Chapter 174, Section 59, as amended) is amended to underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 407 - read: "45-2-711. FUTURE INTERESTS IN HEIRS AND LIKE.--If an applicable statute or a governing instrument calls for a present or future distribution to or creates a present or future interest in a designated individual's "heirs", "heirs at law", "next of kin", "relatives" or "family" or language of similar import, the property passes to those persons, including the state, and in such shares as would succeed to the designated individual's intestate estate under the intestate succession law of the designated individual's domicile if the designated individual died when the disposition is to take effect in possession or enjoyment. If the designated individual's surviving spouse or surviving domestic partner is living but is remarried or in a subsequent domestic partnership at the time the disposition is to take effect in possession or enjoyment, the surviving spouse or surviving domestic partner is not an heir of the designated individual." Section 213. Section 45-2-802 NMSA 1978 (being Laws 1993, Chapter 174, Section 61, as amended) is amended to read: "45-2-802. EFFECT OF DIVORCE, ANNULMENT, DISSOLUTION AND DECREE OF SEPARATION.-- A. An individual who is divorced from the decedent, whose domestic partnership with the decedent has been underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 408 - dissolved or whose marriage to or domestic partnership with the decedent has been annulled is not a surviving spouse or a surviving domestic partner unless, by virtue of a subsequent marriage [he] or domestic partnership, the individual is married to or in a domestic partnership with the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife or domestic partners is not a divorce or dissolution of domestic partnership for purposes of this section. B. For purposes of Chapter 45, Article 2, Parts 1 through 4 and Section 45-3-203 NMSA 1978, a surviving spouse or a surviving domestic partner does not include: (1) an individual who obtains or consents to a final decree or judgment of divorce from the decedent, a final decree of dissolution of domestic partnership with the decedent or an annulment of their marriage or domestic partnership, which decree, [or] judgment or dissolution is not recognized as valid in this state, unless subsequently they participate in a marriage ceremony purporting to marry each to the other, [or] live together as husband and wife or enter into a domestic partnership together; (2) an individual who, following an invalid decree or judgment of divorce, [or] annulment or dissolution of domestic partnership obtained by the decedent, participates in a marriage ceremony or enters into a domestic underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 409 - partnership with a third individual; or (3) an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital or domestic partnership property rights, including a property division judgment entered pursuant to the provisions of Section 40-4-20 NMSA 1978." Section 214. Section 45-2-803 NMSA 1978 (being Laws 1993, Chapter 174, Section 62, as amended) is amended to read: "45-2-803. EFFECT OF HOMICIDE ON INTESTATE SUCCESSION, WILLS, TRUSTS, JOINT ASSETS, LIFE INSURANCE AND BENEFICIARY DESIGNATIONS.-- A. As used in this section: (1) "disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument; and (2) "revocable", with respect to a disposition, appointment, provision or nomination, means one under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation, in favor of the killer, whether or not the decedent was then empowered to designate [himself] the decedent's own self in place of [his] the decedent's killer and the decedent then had capacity to underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 410 - exercise the power. B. An individual who feloniously and intentionally kills the decedent forfeits all benefits pursuant to the provisions of Chapter 45, Article 2 NMSA 1978 with respect to the decedent's estate, including an intestate share, an omitted spouse's, domestic partner's or child's share, a family allowance and a personal property allowance. If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed [his] the killer's intestate share. C. The felonious and intentional killing of the decedent: (1) revokes any revocable: (a) disposition or appointment of property made by the decedent to the killer in a governing instrument; (b) provision in a governing instrument executed by the decedent conferring a general or nongeneral power of appointment on the killer; and (c) nomination of the killer in a governing instrument executed by the decedent, nominating or appointing the killer to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee or agent; and (2) severs the interests of the decedent and killer in property held by them at the time of the killing as underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 411 - joint tenants with the right of survivorship, transforming the interests of the decedent and killer into tenancies in common. D. A severance pursuant to the provisions of Paragraph (2) of Subsection C of this section does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the killer unless a writing declaring the severance has been noted, registered, filed or recorded in records appropriate to the kind and location of the property that are relied upon in the ordinary course of transactions involving such property as evidence of ownership. E. Provisions of a governing instrument executed by the decedent are given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent. F. An acquisition of property or interest by a killer not covered by this section must be treated in accordance with the principle that a killer cannot profit from [his] the killer's wrong. G. After all right to appeal has been exhausted, a judgment of conviction establishing criminal accountability for the felonious and intentional killing of the decedent conclusively establishes the convicted individual as the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 412 - decedent's killer for purposes of this section. In the absence of a conviction, the court upon the petition of an interested person must determine whether under the preponderance of evidence standard the individual would be found criminally accountable for the felonious and intentional killing of the decedent. If the court determines that under that standard the individual would be found criminally accountable for the felonious and intentional killing of the decedent, the determination conclusively establishes that individual as the decedent's killer for purposes of this section. H. A payor or other third-party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument executed by the decedent affected by an intentional and felonious killing or for having taken any other action in good faith reliance on the validity of the governing instrument executed by the decedent upon request and satisfactory proof of the decedent's death before the payor or other third-party received written notice of a claimed forfeiture or revocation under this section. A payor or other third-party is liable for a payment made or other action taken after the payor or other third-party received written notice of a claimed forfeiture or revocation under this section. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 413 - Written notice of a claimed forfeiture or revocation pursuant to the provisions of this section must be mailed to the payor's or other third-party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third-party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed forfeiture or revocation pursuant to the provisions of this section, a payor or other third-party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. The court shall hold the funds or item of property and, upon its determination pursuant to the provisions of this section, shall order disbursement in accordance with the determination. Payments, transfers or deposits made to or with the court discharge the payor or other third-party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court. I. A person who purchases property for value and without notice or who receives a payment or other item of property in partial or full satisfaction of a legally underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 414 - enforceable obligation is neither obligated pursuant to the provisions of this section to return the payment, item of property or benefit nor is liable pursuant to the provisions of this section for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property or any other benefit to which the person is not entitled pursuant to the provisions of this section is obligated to return the payment, item of property or benefit or is personally liable for the amount of the payment or the value of the item of property or benefit to the person who is entitled to it pursuant to the provisions of this section. J. If this section or any part of this section is preempted by federal law with respect to a payment, an item of property or any other benefit covered by this section, a person who, not for value, receives the payment, item of property or any other benefit to which the person is not entitled pursuant to the provisions of this section is obligated to return the payment, item of property or benefit or is personally liable for the amount of the payment or the value of the item of property or benefit to the person who would have been entitled to it were this section or part of this section not preempted." Section 215. Section 45-2-804 NMSA 1978 (being Laws 1993, Chapter 174, Section 63, as amended) is amended to underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 415 - read: "45-2-804. REVOCATION OF PROBATE AND NONPROBATE TRANSFERS BY DIVORCE OR DISSOLUTION--NO REVOCATION BY OTHER CHANGES OF CIRCUMSTANCES.-- A. As used in this section: (1) "disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument; (2) "divorce or annulment" means any divorce or annulment or any dissolution or declaration of invalidity of a marriage or domestic partnership that would exclude the spouse or domestic partner as a surviving spouse or surviving domestic partner within the meaning of Section 45-2-802 NMSA 1978. A decree of separation that does not terminate the status of husband and wife or domestic partners is not a divorce or a dissolution for purposes of this section; (3) "divorced individual" includes an individual whose marriage or domestic partnership has been annulled and an individual whose marriage or domestic partnership has been dissolved; (4) "governing instrument" means a governing instrument executed by the divorced individual before the divorce or annulment of [his] the divorced individual's marriage to [his] or domestic partnership with the former underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 416 - spouse or former domestic partner; (5) "relative of the divorced individual's former spouse or former domestic partner" means an individual who is related to the divorced individual's former spouse or former domestic partner by blood, adoption or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption or affinity; and (6) "revocable", with respect to a disposition, appointment, provision or nomination, means one under which the divorced individual, at the time of the divorce or annulment, was alone empowered by law or under the governing instrument to cancel the designation in favor of [his] the former spouse or former domestic partner or [former spouse's] the relative of the former spouse or former domestic partner whether or not the divorced individual was then empowered to designate [himself] the divorced individual's own self in place of [his] the divorced individual's former spouse or former domestic partner or in place of [his former spouse's] the relative of the former spouse or former domestic partner and whether or not the divorced individual then had the capacity to exercise the power. B. Except as provided by the express terms of a governing instrument, a court order or a contract relating to the division of the marital estate or the division of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 417 - estate created by entering into a domestic partnership made between the divorced individuals before or after the marriage, domestic partnership, divorce or annulment, the divorce or annulment of a marriage or domestic partnership: (1) revokes any revocable: (a) disposition or appointment of property made by a divorced individual to [his] the divorced individual's former spouse or former domestic partner in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse or former domestic partner; (b) provision in a governing instrument conferring a general or nongeneral power of appointment on the divorced individual's former spouse or former domestic partner or on a relative of the divorced individual's former spouse or former domestic partner; and (c) nomination in a governing instrument, nominating a divorced individual's former spouse or former domestic partner or a relative of the divorced individual's former spouse or former domestic partner to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent or guardian; and (2) severs the interests of the former spouses underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 418 - or former domestic partners in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship, transforming the interests of the former spouses or former domestic partners into tenancies in common. C. A severance pursuant to the provisions of Paragraph (2) of Subsection B of this section does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouses or former domestic partners unless a writing declaring the severance has been noted, registered, filed or recorded in records appropriate to the kind and location of the property that are relied upon in the ordinary course of transactions involving such property as evidence of ownership. D. Provisions of a governing instrument are given effect as if the former spouse or former domestic partner and relatives of the former spouse or former domestic partner disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse or former domestic partner and relatives of the former spouse or former domestic partner died immediately before the divorce or annulment. E. Provisions revoked solely by this section are revived by the divorced individual's remarriage to or entry underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 419 - into a new domestic partnership with the former spouse or former domestic partner or by a nullification of the divorce or annulment. F. No change of circumstances other than as described in this section and in Section 45-2-803 NMSA 1978 effects a revocation. G. A payor or other third-party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a divorce, dissolution, annulment, [or] remarriage or entry into a subsequent domestic partnership or for having taken any other action in good faith reliance on the validity of the governing instrument before the payor or other third-party received written notice of the divorce, dissolution, annulment, [or] remarriage or entry into a subsequent domestic partnership. A payor or other third-party is liable for a payment made or other action taken after the payor or other third-party received written notice of a claimed forfeiture or revocation pursuant to the provisions of this section. Written notice of the divorce, dissolution, annulment, [or] remarriage or subsequent domestic partnership pursuant to the provisions of this section must be mailed to the payor's or other third-party's main office or home by registered or certified mail, return receipt requested, or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 420 - served upon the payor or other third-party in the same manner as a summons in a civil action. Upon receipt of the written notice of the divorce, dissolution, annulment, [or] remarriage or subsequent domestic partnership, a payor or other third-party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate or, if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. The court shall hold the funds or item of property and, upon its determination pursuant to the provisions of this section, shall order disbursement or transfer in accordance with the determination. Payments, transfers or deposits made to or with the court discharge the payor or other third-party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court. H. A person who purchases property from a former spouse or former domestic partner, relative of a former spouse or former domestic partner or any other person for value and without notice or who receives from a former spouse or former domestic partner, relative of a former spouse or former domestic partner or any other person a payment or other item of property in partial or full satisfaction of a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 421 - legally enforceable obligation is neither obligated pursuant to the provisions of this section to return the payment, item of property or benefit nor is liable pursuant to the provisions of this section for the amount of the payment or the value of the item of property or benefit. But a former spouse or former domestic partner, relative of a former spouse or former domestic partner or other person who, not for value, received a payment, item of property or any other benefit to which that person is not entitled pursuant to the provisions of this section is obligated to return the payment, item of property or benefit or is personally liable for the amount of the payment or the value of the item of property or benefit to the person who is entitled to it pursuant to the provisions of this section. I. If this section or any part of this section is preempted by federal law with respect to a payment, an item of property or any other benefit covered by this section, a former spouse or former domestic partner, relative of the former spouse or former domestic partner or any other person who, not for value, received a payment, item of property or any other benefit to which that person is not entitled pursuant to the provisions of this section is obligated to return that payment, item of property or benefit or is personally liable for the amount of the payment or the value of the item of property or benefit to the person who would underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 422 - have been entitled to it were this section or part of this section not preempted." Section 216. Section 45-2-805 NMSA 1978 (being Laws 1975, Chapter 257, Section 2-804, as amended) is amended to read: "45-2-805. DEATH OF SPOUSE OR DOMESTIC PARTNER-- COMMUNITY PROPERTY.-- A. Upon the death of [either] a spouse or domestic partner, one-half of the community property belongs to the surviving spouse or surviving domestic partner, and the other half is subject to the testamentary disposition of the decedent, except that community property that is joint tenancy property under Subsection B of Section 40-3-8 NMSA 1978 shall not be subject to the testamentary disposition of the decedent. B. Upon the death of [either] a spouse or domestic partner, the entire community property is subject to the payment of community debts. The [deceased spouse's] separate debts and funeral expenses of the deceased spouse or deceased domestic partner and the charge and expenses of administration are to be satisfied first from [his] the separate property of the deceased spouse or deceased domestic partner, excluding property held in joint tenancy. Should such property be insufficient, then the [deceased spouse's] undivided one-half interest of the deceased spouse or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 423 - deceased domestic partner in the community property shall be liable. C. The provisions of the 1984 amendments to this section shall not affect the right of any creditor, which right accrued prior to the effective date of those amendments." Section 217. Section 45-2-904 NMSA 1978 (being Laws 1992, Chapter 66, Section 4, as amended) is amended to read: "45-2-904. EXCLUSIONS.--Section 45-2-901 NMSA 1978 does not apply to: A. a nonvested property interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of: (1) a premarital or postmarital agreement or a pre-domestic partnership or post-domestic partnership agreement; (2) a separation or [divorce] dissolution settlement; (3) a spouse's or domestic partner's election; (4) a similar arrangement arising out of a prospective, existing or previous marital or domestic partnership relationship between the parties; (5) a contract to make or not to revoke a will or trust; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 424 - (6) a contract to exercise or not to exercise a power of appointment; (7) a transfer in satisfaction of a duty of support; or (8) a reciprocal transfer; B. a fiduciary's power relating to the administration or management of assets, including the power of a fiduciary to sell, lease or mortgage property and the power of a fiduciary to determine principal and income; C. a power to appoint a fiduciary; D. a discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasibly vested interest in the income and principal; E. a nonvested property interest held by a charity, government or governmental agency or subdivision if the nonvested property interest is preceded by an interest held by another charity, government or governmental agency or subdivision; F. a nonvested property interest in or a power of appointment with respect to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral or other current or deferred benefit plan for one or more employees, independent contractors or their beneficiaries, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 425 - [or] spouses or domestic partners, to which contributions are made for the purpose of distributing to or for the benefit of the participants or their beneficiaries, [or] spouses or domestic partners the property, income or principal in the trust or other property arrangement, except a nonvested property interest or a power of appointment that is created by an election of a participant or a beneficiary, [or] spouse or domestic partner; G. a property interest, power of appointment or arrangement that was not subject to the common-law rule against perpetuities or that is excluded by another statute of New Mexico; or H. a property interest or arrangement subject to a time limit under the provisions of Section 45-2-907 NMSA 1978." Section 218. Section 45-2A-2 NMSA 1978 (being Laws 1991, Chapter 173, Section 2) is amended to read: "45-2A-2. DEFINITIONS.--As used in the Uniform Statutory Will Act: A. "child" means, except as modified by this subsection, a child of a natural parent whose relationship is involved; an adopted individual is the child of the adopting parents and not of the natural parents, but an individual adopted by the spouse or domestic partner of a natural parent is also the child of either natural parent; an individual underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 426 - born out of wedlock or outside of a domestic partnership is not the child of the father unless the individual is openly and notoriously so treated by the father; the term does not include an individual who is a stepchild, a foster child, a grandchild or a more remote descendant; B. "issue" of an individual means all lineal descendants of all generations, with the status of a child at each generation being determined by the definition of child in Subsection A of this section; C. "personal representative" includes executor, administrator, successor personal representative, special administrator and a person who performs substantially the same functions relating to the estate of a decedent under the law governing their status; D. "property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property; E. "representation" means the estate is divided into as many equal shares as there are surviving issue in the nearest degree of kinship and deceased individuals in the same degree who left issue surviving the decedent, each surviving issue in the nearest degree receiving one share and the share of each deceased individual in the same degree being divided among issue of that individual in the same manner; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 427 - F. "statutory-will estate" means the entire testamentary estate, except as otherwise provided in the will; G. "surviving spouse" or "surviving domestic partner" means the individual [to] with whom the testator [was married] had entered into a marriage or domestic partnership at the time of death except a spouse or domestic partner from whom the testator was then separated under a decree of separation, whether or not final, or written separation agreement signed by both parties; an individual separated from the testator whose marriage to or domestic partnership with the testator continues in effect under the law of this state solely because a judgment of [divorce] dissolution or annulment of the marriage or domestic partnership is not recognized as valid in this state is not the testator's surviving spouse or surviving domestic partner; an individual whose marriage to or domestic partnership with the testator at the time of death is not recognized in this state solely because a judgment of [divorce] dissolution or annulment of a previous marriage or previous domestic partnership of either or both of them is not recognized as valid in this state is the testator's surviving spouse or surviving domestic partner; H. "testamentary estate" includes every interest in property subject to disposition or appointed by a will of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 428 - decedent; I. "testator's residence" means one or more properties normally used at the time of the testator's death by the testator or the surviving spouse or surviving domestic partner as a residence for any part of the year; if the property used as a residence is a unit in a cooperative or other entity, it includes all rights and interests relating to that unit; if the property is used in part for a commercial, agricultural or other business purpose, the testator's residence is an area not exceeding three acres, which includes the structure used in whole or in part as a residence and structures normally used by the testator in connection with the dwelling and excludes structures and areas outside the dwelling used primarily for a commercial, agricultural or other business purpose; and J. "trustee" includes an original, additional or successor trustee, whether or not appointed or confirmed by the court." Section 219. Section 45-2A-6 NMSA 1978 (being Laws 1991, Chapter 173, Section 6) is amended to read: "45-2A-6. SHARE OF SPOUSE OR DOMESTIC PARTNER.-- A. The share of the surviving spouse or surviving domestic partner is: (1) if there is no surviving issue, the entire statutory-will estate; or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 429 - (2) if there is a surviving issue: (a) subject to any lien or encumbrance, the testator's residence and tangible personal property, except personal property held primarily for investment or for a commercial, agricultural or other business purpose; (b) the greater of one hundred fifty thousand dollars ($150,000) or one-half of the balance of the statutory-will estate; and (c) subject to Subsection B of this section, an interest in the remaining portion of the statutory-will estate, including any property that would pass under Subparagraph (a) of this paragraph but disclaimed by the surviving spouse or surviving domestic partner, in a trust upon the terms set forth in Section [7 of the Uniform Statutory Will Act] 45-2A-7 NMSA 1978. B. If the personal representative, other than the surviving spouse or surviving domestic partner, determines that the trust under Section [7 of the Uniform Statutory Will Act] 45-2A-7 NMSA 1978 would be uneconomical, the entire statutory-will estate passes to the surviving spouse or surviving domestic partner." Section 220. Section 45-2A-7 NMSA 1978 (being Laws 1991, Chapter 173, Section 7) is amended to read: "45-2A-7. TRUST FOR SPOUSE AND ISSUE.-- A. Property held in trust under Subparagraph (c) of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 430 - Paragraph (2) of Subsection A of Section [6] 45-2A-6 NMSA 1978 is held upon the terms of Subsections B through D of this section. B. During the life of the surviving spouse or surviving domestic partner, the entire net income must be paid to or for the benefit of the surviving spouse or surviving domestic partner in quarterly or more frequent installments; net income accrued or undistributed on the death of the surviving spouse or surviving domestic partner must be paid to the estate of the spouse or domestic partner; if unproductive property is held in the trust, the surviving spouse or surviving domestic partner at any time by written instrument delivered to the trustee may compel conversion of the unproductive property to productive property. C. During the life of the surviving spouse or surviving domestic partner, the trustee at any time may pay to or for the benefit of the surviving spouse or surviving domestic partner and issue of the testator amounts of the principal the trustee deems advisable, giving reasonable consideration to other resources available to the distributee, for the individual's needs for health, education, support or maintenance; for the purpose of making those discretionary payments, the principal must be administered as two separate shares, which at the inception of the trust must be equal; one share is the surviving underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 431 - spouse's or surviving domestic partner's share of the principal; during the life of the surviving spouse or surviving domestic partner, payments may not be made from the surviving spouse's or surviving domestic partner's share to anyone other than the surviving spouse or surviving domestic partner; primary consideration must be given to the needs of the surviving spouse or surviving domestic partner and the children of the testator who are under the age of twenty- three years or under disability. The trustee may rely in good faith on a written statement furnished by a beneficiary. The discretion to pay principal to or for the benefit of any individual includes the discretion after that individual's death to pay expenses incurred before the individual's death and to pay funeral and burial expenses. If the trustee, other than the surviving spouse or surviving domestic partner, determines that continuation of the trust is uneconomical, the trustee may terminate the trust by distribution of principal to the surviving spouse or surviving domestic partner. Principal that in the exercise of the trustee's discretion is paid to or for the benefit of any issue may be charged against any share of income or principal thereafter existing for that issue or for any ancestor or descendant of that issue if the trustee upon equitable considerations so determines. If the surviving spouse or surviving domestic partner or any issue is serving underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 432 - as trustee, the trustee's discretion pursuant to this subsection is not exercisable in favor of that trustee except as necessary for the trustee's needs for health, education, support or maintenance, nor is the trustee's discretion exercisable in favor of the trustee's estate, the trustee's creditors or creditors of the trustee's estate. D. On the death of the surviving spouse or surviving domestic partner, the principal, unless retained in trust under Section [9 or 10 of the Uniform Statutory Will Act] 45-2A-9 or 45-2A-10 NMSA 1978, must be paid, subject to any charges made by the trustee under Subsection C of this section, to the children of the testator in equal shares if all of the children are then living, otherwise to the then living issue of the testator by representation or, if no issue of the testator is then living, to the individuals who would be entitled to receive the estate as if the property were located in this state and the testator had then died intestate domiciled in this state in proportions determined under the law then existing." Section 221. Section 45-2A-8 NMSA 1978 (being Laws 1991, Chapter 173, Section 8) is amended to read: "45-2A-8. SHARES OF HEIRS WHEN NO SURVIVING SPOUSE OR SURVIVING DOMESTIC PARTNER.-- A. If there is no surviving spouse or surviving domestic partner, the statutory-will estate passes, subject underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 433 - to Sections [9 and 10] 45-2A-9 and 45-2A-10 NMSA 1978, as follows: (1) if there is surviving issue, in equal shares to the children of the testator if all of them survive, otherwise to the surviving issue of the testator by representation; or (2) if there is no surviving issue, to the individuals entitled to receive the estate as if the property were located in this state and the testator had died intestate domiciled in this state in the proportions so determined. B. Unless the personal representative determines that a trust would be uneconomical, property to which Section [9 or 10] 45-2A-9 or 45-2A-10 NMSA 1978 applies must be distributed to the trustee. If the personal representative determines that a trust would be uneconomical, the property passes under Subsection A of this section free of trust. The discretion provided in this subsection to the personal representative is not exercisable by any of the testator's issue serving as personal representative." Section 222. Section 45-2A-9 NMSA 1978 (being Laws 1991, Chapter 173, Section 9) is amended to read: "45-2A-9. TRUST IF CHILD UNDER SPECIFIED AGE.-- A. If property is distributable under Section [8] 45-2A-8 NMSA 1978 or Subsection D of Section [7 of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 434 - Uniform Statutory Will Act] 45-2A-7 NMSA 1978 to a child of the testator who is under the age specified in the will or, if the will does not specify an age, under the age of twenty- three years, all shares distributable to issue of the testator must be held in a trust under this section. In exercising powers under Subsections B and C of this section, primary consideration must be given to the needs of children of the testator who are under the age of twenty-three years or under disability. B. Until no living child of the testator is under the age determined under Subsection A of this section, the trustee shall pay the income and principal of the trust to or for the benefit or account of one or more of the issue of the testator in amounts the trustee deems advisable for their needs for health, education, support or maintenance. Income not so paid may be added to principal. C. The trustee at any time in its discretion may distribute to a beneficiary the share, in whole or in part, of the trust to which the distributee would be entitled if the trust then terminated. If the whole of a share has been distributed under this subsection, the trustee thereafter must not make any further distribution of income or principal to that distributee or issue of that distributee. D. The trust terminates when no living child of the testator is under the age determined under Subsection A of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 435 - this section or the trustee determines that continuation of the trust is uneconomical. E. Subject to Section [10 of the Uniform Statutory Will Act] 45-2A-10 NMSA 1978 and Subsection C of this section, the property in the trust must be distributed upon termination to the issue of the testator in proportion to the shares determined at the death of the surviving spouse or surviving domestic partner under Subsection D of Section [7 of the Uniform Statutory Will Act] 45-2A-7 NMSA 1978, or at the death of the testator under Section [8 of that act] 45-2A-8 NMSA 1978 if there is no surviving spouse or surviving domestic partner. In determining the amount to be distributed to any distributee, the trustee shall charge the share of that distributee with any partial distribution made under Subsection C of this section and may charge, in its discretion, the share of that distributee with distributions under Subsection B of this section to or for the benefit or account of the distributee, or issue or ancestor of the distributee. If any issue whose share is held in trust under this section dies before the complete distribution of the share, the property to which the issue would have been entitled if living must be distributed to the assignees or, if none, to the estate of the deceased issue. F. If an issue is serving as trustee, the discretion of the trustee under this section is not underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 436 - exercisable, except as necessary for that individual's needs for health, education, support or maintenance, in favor of that individual, that individual's estate, that individual's creditors or the creditors of that individual's estate." Section 223. Section 45-2A-10 NMSA 1978 (being Laws 1991, Chapter 173, Section 10) is amended to read: "45-2A-10. EFFECT OF DISABILITY AT DISTRIBUTION.-- A. If property becomes distributable by a personal representative or trustee to an individual under the age specified in the will or, if the will does not specify an age, under the age of twenty-three years, or to an individual who the personal representative or trustee determines cannot effectively manage or apply the property by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause: (1) the personal representative or trustee, as to principal or income, may distribute part or all of the property to the distributee directly, by deposit or investment in the distributee's name or for the distributee's account, or to a guardian or conservator for the distributee; (2) the personal representative may distribute to the trustee in trust under Paragraph (3) of this subsection; or (3) the trustee may retain all or any of the property in trust for the distributee and thereafter at any underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 437 - time the trustee may distribute or apply part or all of the principal or income to or for the benefit or account of the distributee. B. Unless terminated earlier, a trust under Paragraph (3) of Subsection A of this section terminates upon the attainment of the required age, removal of the disability or death of the distributee. Upon termination, the trustee shall distribute the remaining trust property to the distributee or personal representative of the distributee's estate. C. This section does not apply to distributions to a surviving spouse or surviving domestic partner of the testator." Section 224. Section 45-2A-13 NMSA 1978 (being Laws 1991, Chapter 173, Section 13) is amended to read: "45-2A-13. APPOINTMENT OF PERSONAL REPRESENTATIVE AND TRUSTEE.-- A. The person named in the will as personal representative or trustee is entitled to serve, if qualified, as personal representative or trustee. B. If a qualified person is not named in the will as personal representative, or the named person is incapacitated, unwilling to serve or dead, and a qualified alternate is not named in the will, priority for appointment as personal representative is determined by the law of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 438 - state of the decedent's domicile at death. C. If a qualified person is not named in the will as trustee, or the named person is incapacitated, unwilling to serve or dead, and a qualified alternate is not named in the will, the personal representative may appoint, without court approval, a qualified person, including a person serving as personal representative, to serve as trustee. D. If a personal representative or trustee resigns, is removed, becomes incapacitated or dies, the surviving spouse or surviving domestic partner, or if there is no surviving spouse or surviving domestic partner or the surviving spouse or surviving domestic partner is unable or unwilling to act, a majority of the adult children of the testator may appoint a qualified successor personal representative or trustee. E. In all other cases, personal representatives and trustees must be appointed by the court." Section 225. Section 45-3-101 NMSA 1978 (being Laws 1975, Chapter 257, Section 3-101) is amended to read: "45-3-101. DEVOLUTION OF ESTATE AT DEATH-- ADMINISTRATION ON DEATHS OF HUSBAND AND WIFE OR DOMESTIC PARTNERS.-- A. The power of a person to leave property by will and the rights of creditors, devisees and heirs to [his] the person's property are subject to the restrictions and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 439 - limitations contained in Sections [3-101 through 3-1204] 45-3-101 through 45-3-1204 NMSA 1978 to facilitate the prompt settlement of estates. B. Upon the death of a person, [his] the person's separate property and [his] the person's share of community property devolves: (1) to the persons to whom the property is devised by [his] the person's last will; (2) to those indicated as substitutes for them in cases involving lapse, renunciation or other circumstances pursuant to Sections [2-508 and 2-601 through 2-803] 45-2-508 and 45-2-601 through 45-2-803 NMSA 1978 affecting the devolution of testate estates; or (3) in the absence of testamentary disposition, to [his] the person's heirs or to those indicated as substitutes for them in cases involving renunciation or other circumstances pursuant to Sections [2- 301 through 2-405] 45-2-301 through 45-2-405 NMSA 1978 affecting the devolution of intestate estates. C. The devolution of separate property and the decedent's share of community property is subject to rights to the family allowance and personal property allowance, to rights of creditors and to administration as provided in Sections [3-101 through 3-1204] 45-3-101 through 45-3-1204 NMSA 1978. The surviving spouse's or surviving domestic underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 440 - partner's share of the community property is subject to administration until the time for presentation of claims has expired, and thereafter only to the extent necessary to pay community claims." Section 226. Section 45-3-203 NMSA 1978 (being Laws 1975, Chapter 257, Section 3-203, as amended) is amended to read: "45-3-203. PRIORITY AMONG PERSONS SEEKING APPOINTMENT AS PERSONAL REPRESENTATIVE.-- A. Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order: (1) the person with priority as determined by a probated will, including a person nominated by a power conferred in a will; (2) the surviving spouse or surviving domestic partner of the decedent who is a devisee of the decedent; (3) other devisees of the decedent; (4) the surviving spouse or surviving domestic partner of the decedent; (5) other heirs of the decedent; and (6) on application or petition of an interested person other than a spouse, domestic partner, devisee or heir, any qualified person. B. An objection to an appointment may be made only underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 441 - in formal proceedings. In case of objection, the priorities stated in Subsection A of this section apply except that: (1) if the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person; and (2) in case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value of the estate or, in default of this accord, any suitable person. C. A person entitled to letters under Paragraphs (2) through (5) of Subsection A of this section or a person who has not reached the age of majority and who might be entitled to letters but for the person's age may nominate a qualified person to act as personal representative and thereby confer the person's relative priority for appointment on the person's nominee. Any person who has reached the age of majority may renounce the right to nominate or to an appointment by appropriate writing filed with the court. When two or more persons share a priority, those of them who underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 442 - do not renounce shall concur in nominating another to act for them or in applying for appointment. D. Conservators of the estates of protected persons or, if there is no conservator, any guardian except a guardian ad litem of a minor or incapacitated person may exercise the same right to nominate, to object to another's appointment or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person would have if qualified for appointment. E. Appointment of one who does not have highest priority, including highest priority resulting from renunciation or nomination determined pursuant to this section, may be made only in formal proceedings. Before appointing one without highest priority, the court shall determine that those having highest priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment and that administration is necessary. F. No person is qualified to serve as a personal representative who is: (1) under the age of majority; (2) a person whom the court finds unsuitable in formal proceedings; or (3) a creditor of the decedent unless the appointment is to be made after forty-five days have elapsed underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 443 - from the death of the decedent. G. A personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates different persons to be personal representatives in New Mexico and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative. H. This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator." Section 227. Section 45-3-301 NMSA 1978 (being Laws 1975, Chapter 257, Section 3-301, as amended) is amended to read: "45-3-301. INFORMAL PROBATE OR APPOINTMENT PROCEEDINGS-- APPLICATION--CONTENTS.--Applications for informal probate or informal appointment [must] shall be directed to the probate or district court and verified by the applicant to be accurate and complete to the best of [his] the applicant's knowledge and belief as to the information found in Subsections A through F of this section. A. Every application for informal probate of a will or for informal appointment of a personal representative, other than a special or successor representative, shall contain the following: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 444 - (1) a statement of the interest of the applicant; (2) the name and date of death of the decedent; [his] the decedent's age and the county and state of [his] the decedent's domicile at the time of death; and the names and addresses of the spouse or domestic partner, children, heirs and devisees and the ages of any who are minors so far as known or ascertainable with reasonable diligence by the applicant; (3) if the decedent was not domiciled in New Mexico at the time of [his] death, a statement showing venue; (4) a statement identifying and indicating the address of any personal representative of the decedent appointed in New Mexico or elsewhere whose appointment has not been terminated; (5) a statement indicating whether the applicant has received a demand for notice or is aware of any demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in New Mexico or elsewhere; and (6) a statement that the time limit for informal probate or appointment as provided in Sections [32A-3-101 through 32A-3-1204 NMSA 1953] 45-3-101 through 45-3-1204 NMSA 1978 has not expired either because three years or less have passed since the decedent's death or, if underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 445 - more than three years from death have passed, that circumstances as described by Section [32A-3-108 NMSA 1953] 45-3-108 NMSA 1978 authorizing tardy probate or appointment have occurred. B. An application for informal probate of a will shall state the following in addition to the statements required by Subsection A of this section: (1) that the original of the decedent's last will is in the possession of the court or accompanies the application or that an authenticated copy of [his] the decedent's will probated in another jurisdiction accompanies the application; (2) that the applicant, to the best of [his] the applicant's knowledge, believes the will to have been validly executed; and (3) that after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will and that the applicant believes that the instrument [which] that is the subject of the application is the decedent's last will. C. An application for informal appointment of a personal representative to administer an estate under a will shall describe the will by date of execution and state the time and place of probate or the pending application or petition for probate. The application for appointment shall underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 446 - adopt the statements in the application or petition for probate and state the name, address and priority for appointment of the person whose appointment is sought. D. An application for informal appointment of a personal representative in intestacy shall state in addition to the statements required by Subsection A of this section: (1) that after the exercise of a reasonable diligence, the applicant is unaware of any unrevoked testamentary instrument relating to property having a situs in New Mexico under Section [32A-1-301 NMSA 1953] 45-1-301 NMSA 1978; and (2) the priority of the person whose appointment is sought and the names of any other person having a prior or equal right to the appointment under Section [32A-3-203 NMSA 1953] 45-3-203 NMSA 1978. E. An application for appointment of a personal representative to succeed a personal representative appointed under a different testacy status shall refer to the order in the most recent testacy proceeding, state the name and address of the person whose appointment is sought and of the person whose appointment will be terminated if the application is granted and describe the priority of the applicant. F. An application for appointment of a personal representative to succeed a personal representative who has underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 447 - tendered a resignation as provided in Subsection C of Section [32A-3-610 NMSA 1953] 45-3-610 NMSA 1978 or whose appointment has been terminated by death or removal shall: (1) adopt the statements in the application or petition [which] that led to the appointment of the person being succeeded except as specifically changed or corrected; (2) state the name and address of the person who seeks appointment as successor; and (3) describe the priority of the applicant. G. By verifying an application for informal probate or informal appointment, the applicant submits personally to the jurisdiction of the court in any proceeding for relief from fraud relating to the application or for perjury that may be instituted against [him] the applicant." Section 228. Section 45-3-403 NMSA 1978 (being Laws 1975, Chapter 257, Section 3-403) is amended to read: "45-3-403. FORMAL TESTACY PROCEEDING--NOTICE OF HEARING ON PETITION.-- A. Upon commencement of a formal testacy proceeding, the district court shall fix a time and place of hearing. Notice shall be given in the manner prescribed by Section [1-401] 45-1-401 NMSA 1978 by the petitioner to the persons enumerated in this section and to any additional person who has filed a demand for notice under Section [3-204 of the Probate Code] 45-3-204 NMSA 1978. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 448 - B. Notice shall be given to the following persons: the surviving spouse or surviving domestic partner, children and other heirs of the decedent who would have taken had the decedent died intestate; the devisees and personal representatives named in any will that is being or has been probated or offered for informal or formal probate in the county or that is known by the petitioner to have been probated or offered for informal or formal probate elsewhere; and any personal representative of the decedent whose appointment has not been terminated. Notice may be given to other persons. In addition, the petitioner shall give notice by publication to all unknown persons and to all known persons whose addresses are unknown who have any interest in the matters being litigated. C. If it appears by the petition or otherwise that the fact of the death of the alleged decedent may be in doubt, or on the written demand of any interested person, a copy of the notice of the hearing on the petition shall be sent by registered or certified mail to the alleged decedent at [his] the alleged decedent's last known address. The district court shall direct the petitioner to report the results of or make and report back concerning a reasonably diligent search for the alleged decedent in any manner that may seem advisable, including any or all of the following methods: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 449 - (1) by inserting in one or more suitable periodicals a notice requesting information from any person having knowledge of the whereabouts of the alleged decedent; (2) by notifying law enforcement officials and public welfare agencies in appropriate locations of the disappearance of the alleged decedent; and (3) by engaging the services of an investigator. The costs of any search so directed shall be paid by the petitioner if there is no administration or by the estate of the decedent in case there is administration." Section 229. Section 45-3-703 NMSA 1978 (being Laws 1975, Chapter 257, Section 3-703) is amended to read: "45-3-703. GENERAL DUTIES--RELATION AND LIABILITY TO PERSONS INTERESTED IN ESTATE--STANDING TO SUE.-- A. A personal representative is under a duty to settle and distribute the estate of a decedent in accordance with the terms of any probated and effective will and the Uniform Probate Code and as expeditiously and efficiently as is consistent with the best interests of the estate. [He] The personal representative shall use the authority conferred upon [him] the personal representative by the Uniform Probate Code, the terms of the will, if any, and any order in proceedings to which [he] the personal representative is party for the best interests of successors to the estate. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 450 - B. A personal representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, an informally probated will is authority to administer and distribute the estate according to its terms. C. An order of appointment of a personal representative, whether issued in informal or formal proceedings, is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of: (1) a pending testacy proceeding; (2) a proceeding to vacate an order entered in an earlier testacy proceeding; (3) a formal proceeding questioning [his] the personal representative's appointment or fitness to continue; or (4) a supervised administration proceeding. D. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants, the surviving spouse or surviving domestic partner, any minor and dependent children and any pretermitted child of the decedent. E. Except as to proceedings [which] that do not underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 451 - survive the death of the decedent, a personal representative of a decedent domiciled in New Mexico at [his] the decedent's death has the same standing to sue and be sued in the courts of New Mexico and the courts of any other jurisdiction as [his] the decedent had immediately prior to death." Section 230. Section 45-3-713 NMSA 1978 (being Laws 1975, Chapter 257, Section 3-713) is amended to read: "45-3-713. SALE, ENCUMBRANCE OR TRANSACTION INVOLVING CONFLICT OF INTEREST--VOIDABLE--EXCEPTIONS.-- A. Any sale or encumbrance to the personal representative, [his] the personal representative's spouse, domestic partner, agent or attorney or any corporation or trust in which [he] the personal representative has a substantial beneficial interest or any transaction [which] that is affected by a substantial conflict of interest on the part of the personal representative is voidable by any interested person except one who has consented after fair disclosure, unless: (1) the will or a contract entered into by the decedent expressly authorized the transaction; or (2) the transaction is approved by the district court after notice to interested persons. B. An interested person must petition the district court to void the sale, encumbrance or transaction within the time limits set out by Section [3-1005] 45-3-1005 NMSA 1978." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 452 - Section 231. Section 45-3-901 NMSA 1978 (being Laws 1975, Chapter 232, Section 3-901) is amended to read: "45-3-901. SUCCESSORS' RIGHTS IF NO ADMINISTRATION.--In the absence of administration, the heirs and devisees are entitled to the estate in accordance with the terms of a probated will or the laws of intestate succession. Devisees may establish title by the probated will to devised property. Persons entitled to property by the family allowance, personal property allowance or intestacy may establish title thereto by proof of the decedent's ownership, [his] the decedent's death and their relationship to the decedent. Successors take subject to all charges incident to administration, including the claims of creditors and allowances of surviving spouse or surviving domestic partner and dependent children, and subject to the rights of others resulting from abatement, retainer, advancement and ademption." Section 232. Section 45-3-906 NMSA 1978 (being Laws 1975, Chapter 257, Section 3-906, as amended) is amended to read: "45-3-906. DISTRIBUTION IN KIND--VALUATION--METHOD.-- A. Unless a contrary intention is indicated by the will, the distributable assets of a decedent's estate shall be distributed in kind to the extent possible through application of the following provisions: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 453 - (1) a specific devisee is entitled to distribution of the thing devised to [him] the devisee, and a spouse, domestic partner or child who has selected particular assets of an estate as provided in Section 45-2-402 NMSA 1978 shall receive the items selected; (2) any family allowance, personal property allowance or devise of a stated sum of money may be satisfied in kind, provided: (a) the person entitled to the payment has not demanded payment in cash; (b) the property distributed in kind is valued at fair market value as of the date of its distribution; and (c) no residuary devisee has requested that the asset in question remain a part of the residue of the estate; and (3) the residuary estate shall be distributed in any equitable manner. B. For the purpose of valuation pursuant to Paragraph (2) of Subsection A of this section, securities regularly traded on recognized exchanges, if distributed in kind, are valued at the price for the last sale of like securities traded on the business day prior to distribution or, if there was no sale on that day, at the median between amounts bid and offered at the close of that day. Assets underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 454 - consisting of sums owed the decedent or the estate by solvent debtors as to which there is no known dispute or defense are valued at the sum due with accrued interest or discounted to the date of distribution. For assets that do not have readily ascertainable values, a valuation as of a date not more than thirty days prior to the date of distribution, if otherwise reasonable, controls. For purposes of facilitating distribution, the personal representative may ascertain the value of the assets as of the time of the proposed distribution in any reasonable way, including the employment of qualified appraisers, even if the assets may have been previously appraised. C. After the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to the proposed distribution. The right of any distributee to object to the proposed distribution on the basis of the kind or value of asset [he] the distributee is to receive, if not waived earlier in writing, terminates if [he] the distributee fails to object in writing received by the personal representative within thirty days after mailing or delivery of the proposal." Section 233. Section 45-3-915 NMSA 1978 (being Laws 1975, Chapter 257, Section 3-915, as amended) is amended to read: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 455 - "45-3-915. DISTRIBUTION TO PERSON UNDER DISABILITY.-- A. A personal representative may discharge [his] the personal representative's obligation to distribute to any minor or person under disability by distributing in a manner expressly provided in the will. B. Unless contrary to an express provision in the will, the personal representative may discharge [his] the personal representative's obligation to distribute to a minor or person under other disability as authorized by Section 45-5-101 NMSA 1978 or any other statute. If the personal representative knows that a conservator has been appointed or that a proceeding for appointment of a conservator is pending, the personal representative is authorized to distribute only to the conservator. C. If the heir or devisee is under disability other than minority, the personal representative is authorized to distribute to: (1) an attorney in fact who has authority under a power of attorney to receive property for that person; or (2) the spouse, domestic partner, parent or other close relative with whom the person under disability resides if the distribution is of amounts not exceeding ten thousand dollars ($10,000) a year or property not exceeding ten thousand dollars ($10,000) in value unless the court underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 456 - authorizes a larger amount or greater value. Persons receiving money or property for the disabled person are obligated to apply the money or property to the support of the disabled person. Persons may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the support of the disabled person. Excess sums must be preserved for future support of the disabled person. The personal representative is not responsible for the proper application of money or property distributed pursuant to this subsection." Section 234. Section 45-3-1205 NMSA 1978 (being Laws 1985, Chapter 12, Section 1) is amended to read: "45-3-1205. SMALL ESTATES--TRANSFER OF TITLE TO HOMESTEAD TO SURVIVING SPOUSE OR SURVIVING DOMESTIC PARTNER BY AFFIDAVIT.-- A. Where a husband and wife or partners in a domestic partnership own a homestead as community property and when either the husband or wife or one of the domestic partners dies intestate or dies testate and by [their] the husband's, wife's or domestic partner's will [devise their] devises the husband's, wife's or domestic partner's interest in the homestead to the surviving spouse or surviving domestic partner, the homestead passes to the survivor and no probate or administration is necessary. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 457 - B. Six months after the death of a decedent, the surviving spouse or surviving domestic partner may record with the county clerk in the county in which the homestead is located an affidavit describing the real property and stating that: (1) six months have elapsed since the death of the decedent as shown in a certified copy of the death certificate attached to the affidavit; (2) the affiant and the decedent were at the time of the death of the decedent married or in a domestic partnership and owned the homestead as community property; (3) a copy of the deed with a legal description of the homestead is attached to the affidavit; (4) but for the homestead, the decedent's estate need not be subject to any judicial probate proceeding either in district court or probate court; (5) no application or petition for appointment of a personal representative or for admittance of a will to probate is pending or has been granted in any jurisdiction; (6) funeral expenses, expenses of last illness and all unsecured debts of the decedent have been paid; (7) the affiant is the surviving spouse or surviving domestic partner of the decedent and is entitled to title to the homestead by intestate succession as provided in Section 45-2-102 NMSA 1978 or by devise under a valid last underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 458 - will of the decedent, the original of which is attached to the affidavit; (8) no other person has a right to the interest of the decedent in the described property; (9) no federal or state tax is due on the decedent's estate; and (10) the affiant affirms that all statements in the affidavit are true and correct and further acknowledges that any false statement may subject the person to penalties relating to perjury and subornation of perjury. C. As used in this section, "homestead" means the principal place of residence of the decedent or surviving spouse or surviving domestic partner or the last principal place of residence if neither the decedent nor the surviving spouse or surviving domestic partner is residing in that residence because of illness or incapacitation and [which] that consists of one or more dwellings together with appurtenant structures, the land underlying both the dwellings and the appurtenant structures and a quantity of land reasonably necessary for parking and other uses that facilitates the use of the dwellings and appurtenant structures, and provided that the value of this property for property taxation purposes does not exceed one hundred thousand dollars ($100,000)." Section 235. Section 45-3-1206 NMSA 1978 (being Laws underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 459 - 1985, Chapter 12, Section 2 and Laws 1985, Chapter 132, Section 2) is amended to read: "45-3-1206. EFFECT OF AFFIDAVIT.--A purchaser of real property from or lender to the surviving spouse or surviving domestic partner designated as such in the affidavit recorded under Section 45-3-1205 NMSA 1978 is entitled to the same protection as a person purchasing from or lending to a distributee who has received a deed of distribution from a personal representative as provided in Section 45-3-910 NMSA 1978." Section 236. Section 45-3-1301 NMSA 1978 (being Laws 1978, Chapter 159, Section 12, as amended) is amended to read: "45-3-1301. COLLECTION OF EMPLOYEE'S FINAL PAYMENT WITHOUT ADMINISTRATION.--The surviving spouse or surviving domestic partner of a deceased person may, without procuring letters, collect any sum representing the final payment owed the decedent at the time of [his] the decendent's death for wages, earnings, salary, commissions, travel or other reimbursement from the state or any of its political subdivisions or from any corporation, copartnership, association, individual, bank or trust company." Section 237. Section 45-3-1302 NMSA 1978 (being Laws 1978, Chapter 159, Section 13) is amended to read: "45-3-1302. AFFIDAVIT SHOWING DEATH OF EMPLOYEE-- underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 460 - PAYMENT.--Upon receiving an affidavit stating that a person previously in its employ is dead and that the affiant is the surviving spouse or surviving domestic partner, the state or any of its political subdivisions or any corporation, co- partnership, association, individual, bank or trust company may pay to the affiant the amount of the wages, earnings, commissions, salary, travel or other reimbursement earned by the deceased, and the affiant's receipt shall release the payor from all liability therefor." Section 238. Section 45-5-301 NMSA 1978 (being Laws 1975, Chapter 257, Section 5-301, as amended) is amended to read: "45-5-301. APPOINTMENT OF GUARDIAN FOR INCAPACITATED PERSON--NOTICE.-- A. The parent of an [unmarried] incapacitated person who is not married or in a domestic partnership may appoint by will, or other writing signed by the parent and attested by at least two witnesses, a guardian of the incapacitated person. If both parents are dead or incapacitated or the surviving parent has no parental rights or has been adjudged incapacitated, appointment becomes effective when, after having given seven days' prior written notice of intention to do so to the incapacitated person and to the person having care of the incapacitated person or to the nearest adult relative, the guardian files acceptance of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 461 - appointment in the court in which the will is probated, or in the case of a nontestamentary instrument, in the court at the place where the incapacitated person resides or is present. The notice shall state that the appointment may be terminated by filing a written objection in the court, as provided in Subsection D of this section. If both parents are dead, an effective appointment by the parent who died later has priority. B. The spouse or domestic partner of [a married] an incapacitated person may appoint by will, or other writing signed by the spouse or domestic partner and attested by at least two witnesses, a guardian of the incapacitated person. The appointment becomes effective when, after having given seven days' prior written notice of intention to do so to the incapacitated person and to the person having [his] the incapacitated person's care or to [his] the incapacitated person's nearest adult relative, the guardian files acceptance of appointment in the court in which the will is probated or, in the case of a nontestamentary nominating instrument, in the court at the place where the incapacitated person resides or is present. The notice shall state that the appointment may be terminated by filing a written objection in the court, as provided in Subsection D of this section. An effective appointment by a spouse or domestic partner has priority over an appointment by a parent. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 462 - C. An appointment effected by filing the guardian's acceptance under a will probated in the state of testator's domicile is effective in New Mexico. D. On the filing in the court in which the will was probated or, in the case of a nontestamentary nominating instrument, in the court at the place where the incapacitated person resides or is present, of written objection to the appointment by the incapacitated person for whom [a parental or spousal] an appointment of a guardian by a parent, spouse or domestic partner has been made, the appointment is terminated. An objection does not prevent appointment by the court in a proper proceeding of the [parental or spousal nominee] person nominated by the parent, spouse or domestic partner or any other suitable person upon an adjudication of incapacity in proceedings under Sections 45-5-301.1 through 45-5-315 NMSA 1978." Section 239. Section 45-5-309 NMSA 1978 (being Laws 1975, Chapter 257, Section 5-309, as amended) is amended to read: "45-5-309. NOTICES IN GUARDIANSHIP PROCEEDINGS.-- A. In a proceeding for the appointment or removal of a guardian of an incapacitated person, other than the appointment of a temporary guardian or temporary suspension of a guardian, notice of hearing and a copy of the petition and any interim orders that may have been entered shall be underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 463 - given to each of the following: (1) the person alleged to be incapacitated; (2) the person's spouse or domestic partner, parents and adult children, or if there are no adult children, at least one of the person's closest adult relatives if any can be found; (3) the proposed guardian; and (4) a person, as far as known or as can reasonably be ascertained, previously nominated or designated in a writing signed by the incapacitated person prior to incapacity that has not been revoked by the incapacitated person or terminated by a court. This includes but is not limited to writings executed under the Uniform Health-Care Decisions Act, the Mental Health Care Treatment Decisions Act, the Uniform Power of Attorney Act, the Uniform Probate Code and the Uniform Trust Code. Notice of hearing shall be given to a person who is serving as the guardian or conservator of the person to be protected or who has primary responsibility for the person's care. B. Notice shall be served personally on the alleged incapacitated person and the person's spouse or domestic partner if they can be found within New Mexico. Notice to an out-of-state spouse or out-of-state domestic partner, the parents and to all other persons, except the alleged underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 464 - incapacitated person, shall be given as provided in Section 45-1-401 NMSA 1978. C. At least fourteen days' notice shall be given before the hearing takes place. The notice shall be in plain language and large type and shall include the following information and shall be substantially in the following form: "NOTICE TO: (name and address of person receiving notice) On (date of hearing) at (time of hearing) in (place of hearing) at (city), New Mexico, the (name and address of court) will hold a hearing to determine whether a guardian should be appointed for (name of alleged incapacitated person). The purpose of this proceeding is to protect (name of alleged incapacitated person). A copy of the petition requesting appointment of a guardian is attached to this notice. At the hearing, the court will determine whether (name of alleged incapacitated person) is an incapacitated person under New Mexico law. If the court finds that (name of alleged incapacitated person) is incapacitated, the court at the hearing shall also consider whether (name of proposed guardian, if any) should be appointed as guardian of (name of alleged incapacitated person). The court may, in its discretion, appoint some other qualified person as guardian. The court may also, in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 465 - its discretion, limit the powers and duties of the guardian to allow (name of alleged incapacitated person) to retain control over certain activities. (Name of alleged incapacitated person) shall attend the hearing and be represented by an attorney. The petition may be heard and determined in the absence of (name of alleged incapacitated person) if the court determines that the presence of (name of alleged incapacitated person) is not possible. If (name of alleged incapacitated person) attends the hearing and is not represented by an attorney, the court must appoint an attorney to represent the alleged incapacitated person. The court may, on its own motion or on request of any interested person, postpone the hearing to another date and time. ____________________________ (signature of petitioner)"." Section 240. Section 45-5-311 NMSA 1978 (being Laws 1975, Chapter 257, Section 5-311, as amended) is amended to read: "45-5-311. WHO MAY BE APPOINTED GUARDIAN--PRIORITIES.-- A. Any person deemed to be qualified by the court may be appointed guardian of an incapacitated person, except that no individual who operates or is an employee of a boarding home, residential care home, nursing home, group underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 466 - home or other similar facility in which the incapacitated person resides may serve as guardian for the incapacitated person, except an employee may serve in such capacity when related by affinity or consanguinity. B. Persons who are not disqualified have priority for appointment as guardian in the following order: (1) a guardian or other like fiduciary appointed by the appropriate court of any other jurisdiction; (2) a person, as far as known or as can be reasonably ascertained, previously nominated or designated in a writing as defined in Paragraph (4) of Subsection A of Section 45-5-309 NMSA 1978 to serve as guardian or agent in a writing signed by the incapacitated person prior to the incapacitated person's incapacity that has not been revoked by the incapacitated person or terminated by a court; (3) the spouse or domestic partner of the incapacitated person; (4) an adult child of the incapacitated person; (5) a parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent; (6) any relative of the incapacitated person with whom the incapacitated person has resided for more than six months prior to the filing of the petition; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 467 - (7) a person nominated by the person who is caring for the incapacitated person or paying benefits to the incapacitated person; and (8) any other person. C. With respect to persons having equal priority, the court shall select the person it considers best qualified to serve as guardian. The court, acting in the best interest of the incapacitated person and for good cause shown, may pass over a person having priority and appoint a person having a lower priority under this section and shall take into consideration: (1) the preference of the incapacitated person, giving weight to preferences expressed in writing by the person while having capacity; (2) the geographic location of the proposed guardian; (3) the relationship of the proposed guardian to the incapacitated person; (4) the ability of the proposed guardian to carry out the powers and duties of the guardianship; and (5) potential financial conflicts of interest between the incapacitated person and proposed guardian." Section 241. Section 45-5-402.1 NMSA 1978 (being Laws 1993, Chapter 301, Section 25) is amended to read: "45-5-402.1. PERMISSIBLE COURT ORDERS.-- underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 468 - A. The court shall exercise the authority conferred in Chapter 45, Article 5 NMSA 1978 to encourage the development of maximum self-reliance and independence of a protected person and make protective orders only to the extent necessitated by the protected person's mental and adaptive limitations and other conditions warranting the procedure. B. The court has the following powers that may be exercised directly or through a conservator in respect to the estate and financial affairs of a protected person: (1) while a petition for appointment of a conservator or other protective order is pending and after notice and a preliminary hearing, the court may preserve and apply the property of the person to be protected as may be required for the support of the person or [his] the person's dependents; (2) after notice and hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and financial affairs of the minor [which] that are or may be necessary for the best interest of the minor and members of the minor's immediate family; (3) after notice and hearing and upon determining that a basis for an appointment or other underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 469 - protective order exists with respect to a person for reasons other than minority, the court, for the benefit of the person and members of the person's immediate family, has all the powers over the estate and financial affairs [which] that the person could exercise if present and not under disability, except the power to make a will. These powers include, but are not limited to, the power to: (a) make gifts; (b) convey or release contingent and expectant interests in property, including marital or domestic partnership property rights and any right of survivorship incident to joint tenancy; (c) exercise or release powers held by the protected person as trustee, personal representative, custodian for minors, conservator or donee of a power of appointment; (d) enter into contracts; (e) create revocable or irrevocable trusts of property of the estate [which] that may extend beyond the disability or life of the person; (f) exercise rights to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value; (g) exercise options of the person to purchase securities or other property; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 470 - (h) exercise any right to an elective share in the estate of the person's deceased spouse or deceased domestic partner; and (i) renounce or disclaim any interest by testate or intestate succession or by inter vivos transfer. C. The court may exercise or direct the exercise of the following powers only if satisfied, after notice and hearing, that it is in the best interest of the protected person and that the person either is incapable of consenting or has consented to the proposed exercise of power: (1) to exercise or release powers of appointment of which the protected person is donee; (2) to renounce or disclaim interests; (3) to make gifts in trust or otherwise exceeding twenty percent of any year's income of the estate; and (4) to change beneficiaries under insurance and annuity policies. D. A determination that a basis for appointment of a conservator or other protective order exists has no effect on the capacity of the protected person." Section 242. Section 45-5-404 NMSA 1978 (being Laws 1975, Chapter 257, Section 5-404, as amended) is amended to read: "45-5-404. ORIGINAL PETITION FOR APPOINTMENT OF underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 471 - CONSERVATOR.-- A. Any of the following persons may petition for the appointment of a conservator: (1) the person for whom a conservator is sought; (2) [any] a person who is interested in the estate, affairs or welfare of the person to be protected, including [his] the person's spouse, domestic partner, parent, guardian or custodian; or (3) [any] a person who would be adversely affected by lack of effective management of the property and affairs of the person to be protected. B. The petition shall state the following: (1) the interest of the petitioner; (2) the name, age, residence and address of the person for whom a conservator is sought; (3) the name and address of the guardian, if any, of the person for whom a conservator is sought; (4) the names and addresses, as far as known or as can be reasonably ascertained, of the persons most closely related by blood, [or] marriage or domestic partnership to the person for whom a conservator is sought; (5) the approximate value and description of the property of the person for whom a conservator is sought, including any compensation, insurance, pension or allowance underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 472 - to which the person may be or is entitled; (6) the reasons why appointment of a conservator is necessary, including but not limited to evidence of the person's recent behavior that demonstrates gross mismanagement of [his] the person's income and resources to the extent that it has led or is likely to lead in the near future to waste and dissipation of the income and resources; (7) the name and address of the person or institution, if any, having the care and custody of the person for whom a conservator is sought; (8) the steps taken to find less restrictive alternatives to the proposed conservatorship; (9) the name and address of the person whose appointment is sought; (10) the basis of [his] the person's priority for appointment; (11) the names and addresses of any other persons for whom the proposed conservator is a conservator if the proposed conservator is an individual; and (12) the qualifications of the proposed conservator." Section 243. Section 45-5-405 NMSA 1978 (being Laws 1975, Chapter 257, Section 5-405, as amended) is amended to read: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 473 - "45-5-405. NOTICE IN CONSERVATORSHIP PROCEEDINGS.-- A. In a proceeding for the appointment or removal of a conservator of an incapacitated person or a person to be protected, other than the appointment of a temporary conservator or the temporary suspension of a conservator, notice of hearing and a copy of the petition and any interim orders that may have been entered shall be given to each of the following: (1) the person to be protected; and (2) [his] the person's spouse or domestic partner, parents and adult children, or if there are no adult children, at least one of [his] the person's closest adult relatives if any can be found. Notice of hearing shall be given to any person who is serving as the guardian or conservator of the person to be protected or who has primary responsibility for [his] the person's care. B. Notice shall be served personally on the person to be protected and [his] the person's spouse or domestic partner if the spouse or domestic partner can be found within New Mexico. Notice to an out-of-state spouse or out-of-state domestic partner, parent and all other persons, except the person to be protected, shall be given as provided in Section 45-1-401 NMSA 1978. C. At least fourteen days' notice shall be given underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 474 - before the hearing takes place. The notice should be in plain language and large type and shall include the following information and shall be substantially in the following form: "NOTICE TO: (name and address of person receiving notice) On (date of hearing) at (time of hearing) in (place of hearing) at (city), New Mexico, the (name and address of court) will hold a hearing to determine whether a conservator should be appointed for (name of the person to be protected). The purpose of this proceeding is to appoint a conservator. A copy of the petition requesting appointment of a conservator is attached to this notice. At the hearing, the court will determine whether (name of person to be protected) needs to be protected by a conservator under New Mexico law. If the court finds that (name of the person to be protected) is in need of a conservator, the court at the hearing shall also consider whether (name of proposed conservator, if any) should be appointed as conservator of (name of person to be protected). The court may, in its discretion, appoint some other qualified person as conservator. The court may also, in its discretion, limit the powers and duties of the conservator to allow (name of person to be protected) to retain control over certain activities. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 475 - (Name of person to be protected) shall attend the hearing and be represented by an attorney. The petition may be heard and determined in the absence of (name of person to be protected) if the court determines that the presence of (name of person to be protected) is not required. If (name of person to be protected) attends the hearing and is not represented by an attorney, the court shall appoint an attorney to represent the person to be protected. ___________________________ (signature of petitioner)". D. Notice of a petition for appointment of a conservator and of any subsequent hearing shall be given to any interested person who has filed a request for notice under Section 45-5-406 NMSA 1978 and to such other persons as the court may direct. Except as otherwise provided in Subsection A of this section, notice shall be given in accordance with Section 45-1-401 NMSA 1978." Section 244. Section 45-5-410 NMSA 1978 (being Laws 1975, Chapter 257, Section 5-410, as amended) is amended to read: "45-5-410. WHO MAY BE APPOINTED CONSERVATOR-- PRIORITIES.-- A. The court may appoint an individual, or a corporation with general power to serve as trustee, as conservator of the incapacitated person. The following are underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 476 - entitled to consideration for appointment in the order listed: (1) a conservator, guardian of property or other like fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the incapacitated person resides; (2) any person previously nominated to serve as conservator in a writing signed by the incapacitated person prior to [his] the person's incapacity; (3) an individual or corporation nominated by the incapacitated person if [he] the incapacitated person is fourteen or more years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice; (4) the spouse or domestic partner of the incapacitated person; (5) an adult child of the incapacitated person; (6) a parent of the incapacitated person or a person nominated by the will of a deceased parent; (7) any relative of the incapacitated person with whom [he] the incapacitated person has resided for more than six months prior to the filing of the petition; (8) a person nominated by the person who is caring for the incapacitated person or paying benefits to underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 477 - [him] the incapacitated person; and (9) any other person. B. A person under the priorities of Paragraph (1), (2), (4), (5), (6) or (7) of Subsection A of this section may nominate in writing a person to serve in [his] the person's stead. With respect to persons having equal priority, the court shall select the one who is best qualified of those willing to serve. C. The court, for good cause, may pass over a person having priority and appoint a person having lesser priority under this section and shall take into consideration: (1) the preference of the incapacitated person; (2) the geographic location of the proposed conservator; (3) the relationship of the proposed conservator to the incapacitated person; (4) the ability of the proposed conservator to carry out the powers and duties of the conservatorship; and (5) potential financial conflicts of interest between the incapacitated person and the proposed conservator." Section 245. Section 45-5-422 NMSA 1978 (being Laws 1975, Chapter 257, Section 5-422) is amended to read: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 478 - "45-5-422. SALE, ENCUMBRANCE OR TRANSACTION INVOLVING CONFLICT OF INTEREST--VOIDABLE--EXCEPTIONS.--Any sale or encumbrance to a conservator [his] or the conservator's spouse, domestic partner, agent or attorney or to any corporation or trust in which [he] the conservator has a substantial beneficial interest or any transaction [which] that is affected by a substantial conflict of interest is voidable unless the transaction is approved by the court after notice to interested persons and others as directed by the court." Section 246. Section 45-6-102 NMSA 1978 (being Laws 2005, Chapter 143, Section 3) is amended to read: "45-6-102. LIABILITY OF NONPROBATE TRANSFEREES FOR CREDITOR CLAIMS AND STATUTORY ALLOWANCES.-- A. In this section, "nonprobate transfer" means a valid transfer effective at death, other than a transfer of a survivorship interest in a joint tenancy of real estate, by a transferor whose last domicile was in this state to the extent that the transferor immediately before death had power, acting alone, to prevent the transfer by revocation or withdrawal and instead to use the property for the benefit of the transferor or apply it to discharge claims against the transferor's probate estate. B. Except as otherwise provided by statute, a transferee of a nonprobate transfer is subject to liability underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 479 - to any probate estate of the decedent for allowed claims against the decedent's probate estate and statutory allowances to the decedent's spouse or domestic partner and children to the extent the estate is insufficient to satisfy those claims and allowances. The liability of a nonprobate transferee may not exceed the value of nonprobate transfers received or controlled by that transferee. C. Nonprobate transferees are liable for the insufficiency described in Subsection B of this section in the following order of priority: (1) a transferee designated in the decedent's will or any other governing instrument, as provided in the instrument; (2) the trustee of a trust serving as the principal nonprobate instrument in the decedent's estate plan as shown by its designation as devisee of the decedent's residuary estate or by other facts or circumstances, to the extent of the value of the nonprobate transfer received or controlled; and (3) other nonprobate transferees, in proportion to the values received. D. Unless otherwise provided by the trust instrument, interests of beneficiaries in all trusts incurring liabilities under this section abate as necessary to satisfy the liability, as if all of the trust instruments underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 480 - were a single will and the interests were devises under it. E. A provision made in one instrument may direct the apportionment of the liability among the nonprobate transferees taking under that or any other governing instrument. If a provision in one instrument conflicts with a provision in another, the later one prevails. F. Upon due notice to a nonprobate transferee, the liability imposed by this section is enforceable in proceedings in this state, whether or not the transferee is located in this state. G. A proceeding under this section may not be commenced unless the personal representative of the decedent's estate has received a written demand for the proceeding from the surviving spouse or surviving domestic partner or a child, to the extent that statutory allowances are affected, or a creditor. If the personal representative declines or fails to commence a proceeding after demand, a person making demand may commence the proceeding in the name of the decedent's estate, at the expense of the person making the demand and not of the estate. A personal representative who declines in good faith to commence a requested proceeding incurs no personal liability for declining. H. A proceeding under this section must be commenced within one year after the decedent's death, but a proceeding on behalf of a creditor whose claim was allowed underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 481 - after proceedings challenging disallowance of the claim may be commenced within sixty days after final allowance of the claim. I. Unless a written notice asserting that a decedent's probate estate is nonexistent or insufficient to pay allowed claims and statutory allowances has been received from the decedent's personal representative, the following rules apply: (1) payment or delivery of assets by a financial institution, registrar or other obligor to a nonprobate transferee in accordance with the terms of the governing instrument controlling the transfer releases the obligor from all claims for amounts paid or assets delivered; and (2) a trustee receiving or controlling a nonprobate transfer is released from liability under this section with respect to any assets distributed to the trust's beneficiaries. Each beneficiary to the extent of the distribution received becomes liable for the amount of the trustee's liability attributable to assets received by the beneficiary." Section 247. Section 45-6-211 NMSA 1978 (being Laws 1992, Chapter 66, Section 24) is amended to read: "45-6-211. OWNERSHIP DURING LIFETIME.-- A. As used in this section, "net contribution" of a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 482 - party means the sum of all deposits to an account made by or for the party, less all payments from the account made to or for the party [which] that have not been paid to or applied to the use of another party and a proportionate share of any charges deducted from the account, plus a proportionate share of any interest or dividends earned, whether or not included in the current balance. The term includes deposit life insurance proceeds added to the account by reason of death of the party whose net contribution is in question. B. During the lifetime of all parties, an account belongs to the parties in proportion to the net contribution of each to the sums on deposit, unless there is clear and convincing evidence of a different intent. As between parties that are married to each other or in a domestic partnership, in the absence of proof otherwise, the net contribution of each is presumed to be an equal amount. C. A beneficiary in an account having a POD designation has no right to sums on deposit during the lifetime of any party. D. An agent in an account with an agency designation has no beneficial right to sums on deposit." Section 248. Section 45-6-212 NMSA 1978 (being Laws 1992, Chapter 66, Section 25) is amended to read: "45-6-212. RIGHTS AT DEATH.-- A. Except as otherwise provided in this part, on underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 483 - death of a party sums on deposit in a multiple-party account belong to the surviving party or parties. If two or more parties survive and one is the surviving spouse or surviving domestic partner of the decedent, the amount to which the decedent, immediately before death, was beneficially entitled under Section 45-6-211 NMSA 1978 belongs to the surviving spouse or surviving domestic partner. If two or more parties survive and none is the surviving spouse or surviving domestic partner of the decedent, the amount to which the decedent, immediately before death, was beneficially entitled under Section 45-6-211 NMSA 1978 belongs to the surviving parties in equal shares, and augments the proportion to which each survivor, immediately before the decedent's death, was beneficially entitled under Section 45-6-211 NMSA 1978, and the right of survivorship continues between the surviving parties. B. In an account with a POD designation: (1) on death of one of two or more parties, the rights in sums on deposit are governed by Subsection A of this section; and (2) on death of the sole party or the last survivor of two or more parties, sums on deposit belong to the surviving beneficiary or beneficiaries; if two or more beneficiaries survive, sums on deposit belong to them in equal and undivided shares, and there is no right of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 484 - survivorship in the event of death of a beneficiary thereafter; if no beneficiary survives, sums on deposit belong to the estate of the last surviving party. C. Sums on deposit in a single-party account without a POD designation, or in a multiple-party account that, by the terms of the account, is without right of survivorship, are not affected by death of a party, but the amount to which the decedent, immediately before death, was beneficially entitled under Section 45-6-211 NMSA 1978 is transferred as part of the decedent's estate. A POD designation in a multiple-party account without right of survivorship is ineffective. For purposes of this section, designation of an account as a tenancy in common establishes that the account is without right of survivorship. D. The ownership right of a surviving party or beneficiary, or of the decedent's estate, in sums on deposit is subject to requests for payment made by a party before the party's death, whether paid by the financial institution before or after death, or unpaid. The surviving party or beneficiary, or the decedent's estate, is liable to the payee of an unpaid request for payment. The liability is limited to a proportionate share of the amount transferred under this section, to the extent necessary to discharge the request for payment." Section 249. Section 45-6-226 NMSA 1978 (being Laws underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 485 - 1992, Chapter 66, Section 35, as amended) is amended to read: "45-6-226. DISCHARGE.-- A. Payment made pursuant to Sections 45-6-201 through 45-6-227 NMSA 1978 in accordance with the type of account discharges the financial institution from all claims for amounts so paid, whether or not the payment is consistent with the beneficial ownership of the account as between parties, beneficiaries or their successors. Payment may be made whether or not a party, beneficiary or agent is disabled, incapacitated or deceased when payment is requested, received or made. B. Protection under this section does not extend to payments made after a financial institution has received written notice from a party, or from the personal representative, surviving spouse or surviving domestic partner or heir or devisee of a deceased party, to the effect that payments in accordance with the terms of the account, including one having an agency designation, should not be permitted, and the financial institution has had a reasonable opportunity to act on it when the payment is made. Unless the notice is withdrawn by the person giving it, the successor of any deceased party must concur in a request for payment if the financial institution is to be protected under this section. Unless a financial institution has been served with process in an action or proceeding, no other notice or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 486 - other information shown to have been available to the financial institution affects its right to protection under this section. C. A financial institution that receives written notice pursuant to this section or otherwise has reason to believe that a dispute exists as to the rights of the parties may refuse, without liability, to make payments in accordance with the terms of the account. D. Protection of a financial institution under this section does not affect the rights of parties in disputes between themselves or their successors concerning the beneficial ownership of sums on deposit in accounts or payments made from accounts." Section 250. Section 45-6-401 NMSA 1978 (being Laws 2001, Chapter 236, Section 1) is amended to read: "45-6-401. REAL PROPERTY--TRANSFER ON DEATH DEED.-- A. An interest in real property may be titled in transfer on death form by recording a deed signed and acknowledged by the record owner of the interest and designating a grantee beneficiary or beneficiaries of the interest. The deed transfers ownership of that interest upon the death of the owner. A transfer on death deed need not be supported by consideration. B. The signature, consent or agreement of or notice to a grantee beneficiary of a transfer on death deed is not underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 487 - required for any purpose during the lifetime of the record owner. C. An interest in real property is titled in transfer on death form by executing, acknowledging and recording in the office of the county clerk in the county where the real property is located, prior to the death of the owner, a deed in substantially the following form: "TRANSFER ON DEATH DEED .......(Name of owner).... as owner transfers on death to ....(name of beneficiary)..., as grantee beneficiary, the following described interest in real property. THIS TRANSFER ON DEATH DEED IS REVOCABLE. IT DOES NOT TRANSFER ANY OWNERSHIP UNTIL THE DEATH OF THE OWNER. IT REVOKES ALL PRIOR BENEFICIARY DESIGNATIONS BY THIS OWNER FOR THIS INTEREST IN REAL PROPERTY. (description) Witness....................hand........................and seal.......................this..............day of 20....... ..........................(Seal) (Here add acknowledgment(s))". D. A designation of the grantee beneficiary may be revoked by the record owner at any time prior to the death of the record owner, by the record owner executing, acknowledging and recording in the office of the county clerk in the county where the real property is located an underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 488 - instrument describing the interest and revoking the designation. The signature, consent or agreement of or notice to the grantee beneficiary or beneficiaries is not required. E. A designation of the grantee beneficiary may be changed by the record owner at any time prior to the death of the record owner, by the record owner executing, acknowledging and recording a subsequent transfer on death deed. The signature, consent or agreement of or notice to the grantee beneficiary or beneficiaries is not required. A subsequent transfer on death beneficiary designation revokes a prior designation to the extent there is a conflict between the two designations. F. A transfer on death deed executed, acknowledged and recorded in accordance with this section is not revoked by the provisions of a will. G. A joint tenancy in real property is not [effected] affected by a transfer on death deed, and the rights of a surviving joint tenant shall prevail over a grantee beneficiary named in a transfer on death deed. If a joint tenant has executed a transfer on death deed, and if that joint tenant is the last surviving joint tenant, then the transfer on death deed is effective on that joint tenant's death. H. Title to the interest in real estate recorded in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 489 - transfer on death form shall vest in the designated grantee beneficiary or beneficiaries on the death of the record owner. I. Grantee beneficiaries of a transfer on death deed take the record owner's interest in the real estate at death subject to all conveyances, assignments, contracts, mortgages, liens and security pledges made by the record owner or to which the record owner was subject during the record owner's lifetime and to any interest conveyed by the record owner that is less than all of the record owner's interest in the property. J. If the assets of the estate are insufficient, a transfer resulting from a transfer on death deed is not effective against the estate of a deceased party to the extent needed to pay any claims against the estate and the statutory allowances to the surviving spouse or surviving domestic partner and children. K. If a grantee beneficiary dies prior to the death of the record owner and an alternative grantee beneficiary has not been designated on the deed, the transfer shall lapse." Section 251. Section 45-7-502 NMSA 1978 (being Laws 1992, Chapter 66, Section 49) is amended to read: "45-7-502. DEFINITIONS.--As used in the Uniform Custodial Trust Act: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 490 - A. "adult" means an individual who is at least eighteen years of age; B. "beneficiary" means an individual for whom property has been transferred to or held under a declaration of trust by a custodial trustee for the individual's use and benefit under the Uniform Custodial Trust Act; C. "conservator" means a person appointed or qualified by a court to manage the estate of an individual or a person legally authorized to perform substantially the same functions; D. "court" means the district court of this state; E. "custodial trust property" means an interest in property transferred to or held under a declaration of trust by a custodial trustee under the Uniform Custodial Trust Act and the income from and proceeds of that interest; F. "custodial trustee" means a person designated as trustee of a custodial trust under the Uniform Custodial Trust Act or a substitute or successor to the person designated; G. "guardian" means a person appointed or qualified by a court as a guardian of an individual, including a limited guardian, but not a person who is only a guardian ad litem; H. "incapacitated" means lacking the ability to manage property and business affairs effectively by reason of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 491 - mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, disappearance, minority or other disabling cause; I. "legal representative" means a personal representative or conservator; J. "member of the beneficiary's family" means a beneficiary's spouse, domestic partner, descendant, stepchild, parent, stepparent, grandparent, brother, sister, uncle or aunt, whether of the whole or half blood or by adoption; K. "person" means an individual, corporation, business trust, estate, trust, partnership, joint venture, association or any other legal or commercial entity; L. "personal representative" means an executor, administrator or special administrator of a decedent's estate, a person legally authorized to perform substantially the same functions or a successor to any of them; M. "state" means a state, territory or possession of the United States, the District of Columbia or the commonwealth of Puerto Rico; N. "transferor" means a person who creates a custodial trust by transfer or declaration; and O. "trust company" means a financial institution, corporation or other legal entity authorized to exercise underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 492 - general trust powers." Section 252. Section 45-7-507 NMSA 1978 (being Laws 1992, Chapter 66, Section 54) is amended to read: "45-7-507. MULTIPLE BENEFICIARIES--SEPARATE CUSTODIAL TRUSTS--SURVIVORSHIP.-- A. Beneficial interests in a custodial trust created for multiple beneficiaries are deemed to be separate custodial trusts of equal undivided interests for each beneficiary. Except in a transfer or declaration for use and benefit of husband and wife or domestic partners for whom survivorship is presumed, a right of survivorship does not exist unless the instrument creating the custodial trust specifically provides for survivorship. B. Custodial trust property held under the Uniform Custodial Trust Act by the same custodial trustee for the use and benefit of the same beneficiary may be administered as a single custodial trust. C. A custodial trustee of custodial trust property held for more than one beneficiary shall separately account to each beneficiary pursuant to Sections 45-7-508 and 45-7-516 NMSA 1978 for the administration of the custodial trust." Section 253. Section 46-3A-104 NMSA 1978 (being Laws 2001, Chapter 113, Section 104, as amended) is amended to read: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 493 - "46-3A-104. TRUSTEE'S POWER TO ADJUST.-- [(a)] A. A trustee may adjust between principal and income to the extent the trustee considers necessary if the trustee invests and manages trust assets as a prudent investor, the terms of the trust describe the amount that may or must be distributed to a beneficiary by referring to the trust's income, and the trustee determines, after applying the rules in Subsection [(a)] A of Section 46-3A-103 NMSA 1978, that the trustee is unable to comply with Subsection [(b)] B of Section 46-3A-103 NMSA 1978. [(b)] B. In deciding whether and to what extent to exercise the power conferred by Subsection [(a)] A of this section, a trustee shall consider all factors relevant to the trust and its beneficiaries, including the following factors to the extent they are relevant: (1) the nature, purpose and expected duration of the trust; (2) the intent of the settlor; (3) the identity and circumstances of the beneficiaries; (4) the needs for liquidity, regularity of income, and preservation and appreciation of capital; (5) the assets held in the trust; the extent to which they consist of financial assets, interests in closely held enterprises, tangible and intangible personal underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 494 - property or real property; the extent to which an asset is used by a beneficiary; and whether an asset was purchased by the trustee or received from the settlor; (6) the net amount allocated to income under the other sections of the Uniform Principal and Income Act and the increase or decrease in the value of the principal assets, which the trustee may estimate as to assets for which market values are not readily available; (7) whether and to what extent the terms of the trust give the trustee the power to invade principal or accumulate income or prohibit the trustee from invading principal or accumulating income, and the extent to which the trustee has exercised a power from time to time to invade principal or accumulate income; (8) the actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation; and (9) the anticipated tax consequences of an adjustment. [(c)] C. A trustee may not make an adjustment: (1) that diminishes the income interest in a trust that requires all of the income to be paid at least annually to a surviving spouse or surviving domestic partner and for which an estate tax or gift tax marital deduction would be allowed, in whole or in part, if the trustee did not underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 495 - have the power to make the adjustment; (2) that reduces the actuarial value of the income interest in a trust to which a person transfers property with the intent to qualify for a gift tax exclusion; (3) that changes the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets; (4) from any amount that is permanently set aside for charitable purposes under a will or the terms of a trust unless both income and principal are so set aside; (5) if possessing or exercising the power to make an adjustment causes an individual to be treated as the owner of all or part of the trust for income tax purposes, and the individual would not be treated as the owner if the trustee did not possess the power to make an adjustment; (6) if possessing or exercising the power to make an adjustment causes all or part of the trust assets to be included for estate tax purposes in the estate of an individual who has the power to remove a trustee or appoint a trustee, or both, and the assets would not be included in the estate of the individual if the trustee did not possess the power to make an adjustment; (7) if the trustee is a beneficiary of the trust; (8) if the trustee is not a beneficiary, but underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 496 - the adjustment would benefit the trustee directly or indirectly; or (9) if the trust is a total return trust. [(d)] D. If Paragraph (5), (6), (7) or (8) of Subsection [(c)] C of this section applies to a trustee and there is more than one trustee, a co-trustee to whom the provision does not apply may make the adjustment unless the exercise of the power by the remaining trustee or trustees is not permitted by the terms of the trust. [(e)] E. A trustee may release the entire power conferred by Subsection [(a)] A of this section or may release only the power to adjust from income to principal or the power to adjust from principal to income if the trustee is uncertain about whether possessing or exercising the power will cause a result described in Paragraphs (1) through (6) or Paragraph (8) of Subsection [(c)] C of this section or if the trustee determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in Subsection [(c)] C of this section. The release may be permanent or for a specified period, including a period measured by the life of an individual. [(f)] F. Terms of a trust that limit the power of a trustee to make an adjustment between principal and income do not affect the application of this section unless it is clear underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 497 - from the terms of the trust that the terms are intended to deny the trustee the power of adjustment conferred by Subsection [(a)] A of this section." Section 254. Section 46-3A-413 NMSA 1978 (being Laws 2001, Chapter 113, Section 413) is amended to read: "46-3A-413. PROPERTY NOT PRODUCTIVE OF INCOME.-- [(a)] A. If a marital or domestic partnership deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the spouse or domestic partner with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under Section [104] 46-3A-104 NMSA 1978 and distributes to the spouse or domestic partner from principal pursuant to the terms of the trust are insufficient to provide the spouse or domestic partner with the beneficial enjoyment required to obtain the marital or domestic partnership deduction, the spouse or domestic partner may require the trustee to make property productive of income, convert property within a reasonable time or exercise the power conferred by Subsection A of Section [104(a)] 46-3A-104 NMSA 1978. The trustee may decide which action or combination of actions to take. [(b)] B. In cases not governed by Subsection [(a)] A of this section, proceeds from the sale or other disposition of an asset are principal without regard to the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 498 - amount of income the asset produces during any accounting period." Section 255. Section 46-7-12 NMSA 1978 (being Laws 1989, Chapter 357, Section 2) is amended to read: "46-7-12. DEFINITIONS.--As used in the Uniform Transfers to Minors Act: A. "adult" means an individual who has attained the age of twenty-one years; B. "benefit plan" means an employer's plan for the benefit of an employee or partner; C. "broker" means a person lawfully engaged in the business of effecting transactions in securities or commodities for the person's own account or for the account of others; D. "conservator" means a person appointed or qualified by a court to act as general, limited or temporary guardian of a minor's property or a person legally authorized to perform substantially the same functions; E. "court" means the district court; F. "custodial property" means: (1) any interest in property transferred to a custodian under the Uniform Transfers to Minors Act; and (2) the income from and proceeds of that interest in property; G. "custodian" means a person so designated under underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 499 - Section [10 of the Uniform Transfers to Minors Act] 46-7-20 NMSA 1978 or a successor or substitute custodian designated under Section [19 of that act] 46-7-29 NMSA 1978; H. "financial institution" means a bank, trust company, savings institution or credit union chartered and supervised under state or federal law; I. "legal representative" means an individual's personal representative or conservator; J. "member of the minor's family" means the minor's parent, stepparent, spouse, domestic partner, grandparent, brother, sister, uncle or aunt, whether of the whole or half blood or by adoption; K. "minor" means an individual who has not attained the age of twenty-one years; L. "person" means an individual, corporation, organization or other legal entity; M. "personal representative" means an executor, administrator, successor, personal representative or special administrator of a decendent's estate or a person legally authorized to perform [substantally] substantially the same functions; N. "state" includes any state of the United States, the District of Columbia, the commonwealth of Puerto Rico and any territory or possession subject to the legislative authority of the United States; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 500 - O. "transfer" means a transaction that creates custodial property under Section [10 of the Uniform Transfers to Minors Act] 46-7-20 NMSA 1978; P. "transferor" means a person who makes a transfer under [that] the Uniform Transfers to Minors Act; and Q. "trust company" means a financial institution, corporation or other legal entity authorized to exercise general trust powers." Section 256. Section 46A-5-503 NMSA 1978 (being Laws 2003, Chapter 122, Section 5-503, as amended) is amended to read: "46A-5-503. EXCEPTIONS TO SPENDTHRIFT PROVISION.-- A. As used in this section, "child" includes any person for whom an order or judgment for child support has been entered in this or another state. B. A spendthrift provision is unenforceable against: (1) a beneficiary's child, spouse or domestic partner or former spouse or former domestic partner who has a judgment or court order against the beneficiary for support or maintenance; (2) a judgment creditor who has provided services for the protection of a beneficiary's interest in the trust; and (3) a claim of this state or the United States underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 501 - to the extent a statute of this state or federal law so provides. C. A claimant against whom a spendthrift provision cannot be enforced may obtain from a court an order attaching present or future distributions to or for the benefit of the beneficiary. The court may limit the award to such relief as is appropriate under the circumstances. The order attaching present or future distributions to or for the benefit of the beneficiary shall be the exclusive remedy available to a claimant against whom a spendthrift provision cannot be enforced." Section 257. Section 46A-5-504 NMSA 1978 (being Laws 2003, Chapter 122, Section 5-504, as amended) is amended to read: "46A-5-504. DISCRETIONARY TRUSTS--EFFECT OF STANDARD.-- A. As used in this section, "child" includes any person for whom an order or judgment for child support has been entered in this or another state. B. Except as otherwise provided in Subsection C of this section, whether or not a trust contains a spendthrift provision, a creditor of a beneficiary may not compel a distribution that is subject to the trustee's discretion, even if: (1) the discretion is expressed in the form of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 502 - a standard of distribution; or (2) the trustee has abused the discretion. C. To the extent a trustee has not complied with a standard of distribution or has abused a discretion: (1) a distribution may be ordered by the court to satisfy a judgment or court order against the beneficiary for support or maintenance of the beneficiary's child, spouse or domestic partner or former spouse or former domestic partner; and (2) the court shall direct the trustee to pay to the child, spouse or domestic partner or former spouse or former domestic partner such amount as is equitable under the circumstances but not more than the amount the trustee would have been required to distribute to or for the benefit of the beneficiary had the trustee complied with the standard or not abused the discretion. D. This section does not limit the right of a beneficiary to maintain a judicial proceeding against a trustee for an abuse of discretion or failure to comply with a standard for distribution. E. If the trustee's or co-trustee's discretion to make distributions for the trustee's or co-trustee's own benefit is limited by an ascertainable standard, a creditor shall not reach or compel distribution of the beneficial interest except to the extent the interest would be subject underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 503 - to the creditor's claim were the beneficiary not acting as trustee or co-trustee." Section 258. Section 46A-5-505 NMSA 1978 (being Laws 2003, Chapter 122, Section 5-505) is amended to read: "46A-5-505. CREDITOR'S CLAIM AGAINST SETTLOR.-- A. Whether or not the terms of a trust contain a spendthrift provision, the following rules apply: (1) during the lifetime of the settlor, the property of a revocable trust is subject to claims of the settlor's creditors; (2) with respect to an irrevocable trust, a creditor or assignee of the settlor may reach the maximum amount that can be distributed to or for the settlor's benefit. If a trust has more than one settlor, the amount the creditor or assignee of a particular settlor may reach may not exceed the settlor's interest in the portion of the trust attributable to that settlor's contribution; and (3) after the death of a settlor, and subject to the settlor's right to direct the source from which liabilities will be paid, the property of a trust that was revocable at the settlor's death is subject to claims of the settlor's creditors, costs of administration of the settlor's estate, the expenses of the settlor's funeral and disposal of remains and statutory allowances to a surviving spouse or surviving domestic partner and children to the extent the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 504 - settlor's probate estate is inadequate to satisfy those claims, costs, expenses and allowances. B. For purposes of this section: (1) during the period the power may be exercised, the holder of a power of withdrawal is treated in the same manner as the settlor of a revocable trust to the extent of the property subject to the power; and (2) upon the lapse, release or waiver of the power, the holder is treated as the settlor of the trust only to the extent the value of the property affected by the lapse, release or waiver exceeds the greater of the amount specified in Section 2041(b)(2), 2514(e) or 2503(b) of the Internal Revenue Code of 1986, as amended." Section 259. Section 46A-6-602 NMSA 1978 (being Laws 2003, Chapter 122, Section 6-602, as amended) is amended to read: "46A-6-602. REVOCATION OR AMENDMENT OF REVOCABLE TRUST.-- A. Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before July 1, 2003. B. If a revocable trust is created or funded by more than one settlor: (1) to the extent the trust consists of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 505 - community property, the trust may be revoked by either spouse or domestic partner acting alone but may be amended only by joint action of both spouses or domestic partners; (2) to the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to that settlor's contribution; and (3) upon the revocation or amendment of the trust by fewer than all of the settlors, the trustee shall promptly notify the other settlors of the revocation or amendment. C. The settlor may revoke or amend a revocable trust: (1) by substantial compliance with a method provided in the terms of the trust; or (2) if the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by: (a) a later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust; or (b) any other method manifesting clear and convincing evidence of the settlor's intent. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 506 - D. Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs. E. A settlor's powers with respect to revocation, amendment or distribution of trust property may be exercised by an agent under a power of attorney only to the extent expressly authorized by the terms of the trust or the power. F. A conservator of the settlor or, if no conservator has been appointed, a guardian of the settlor may exercise a settlor's powers with respect to revocation, amendment or distribution of trust property only with the approval of the court supervising the conservatorship or guardianship. G. A trustee who does not know that a trust has been revoked or amended is not liable to the settlor or settlor's successors in interest for distributions made and other actions taken on the assumption that the trust had not been amended or revoked." Section 260. Section 46A-8-802 NMSA 1978 (being Laws 2003, Chapter 122, Section 8-802, as amended) is amended to read: "46A-8-802. DUTY OF LOYALTY.-- A. A trustee shall administer the trust solely in the interests of the beneficiaries. B. Subject to the rights of persons dealing with or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 507 - assisting the trustee as provided in Section 46A-10-1012 NMSA 1978, a sale, encumbrance or other transaction involving the investment or management of trust property entered into by the trustee for the trustee's own personal account or that is otherwise affected by a conflict between the trustee's fiduciary and personal interests is voidable by a beneficiary affected by the transaction unless: (1) the transaction was authorized by the terms of the trust; (2) the transaction was approved by the court; (3) the beneficiary did not commence a judicial proceeding within the time allowed by Section 46A-10-1005 NMSA 1978; (4) the beneficiary consented to the trustee's conduct, ratified the transaction or released the trustee in compliance with Section 46A-10-1009 NMSA 1978; or (5) the transaction involved a contract entered into or claim acquired by the trustee before the person became or contemplated becoming trustee. C. A sale, encumbrance or other transaction involving the investment or management of trust property is presumed to be affected by a conflict between personal and fiduciary interests if it is entered into by the trustee with: (1) the trustee's spouse or domestic partner; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 508 - (2) the trustee's descendants, siblings, parents or the spouse or domestic partner of any of them; (3) an agent or attorney of the trustee; or (4) a corporation or other person or enterprise in which the trustee, or a person that owns a significant interest in the trustee, has an interest that might affect the trustee's best judgment. D. A transaction between a trustee and a beneficiary that does not concern trust property but that occurs during the existence of the trust or while the trustee retains significant influence over the beneficiary and from which the trustee obtains an advantage is voidable by the beneficiary unless the trustee establishes that the transaction was fair to the beneficiary. E. A transaction not concerning trust property in which the trustee engages in the trustee's individual capacity involves a conflict between personal and fiduciary interests if the transaction concerns an opportunity properly belonging to the trust. F. An investment by a trustee in securities of an investment company or investment trust to which the trustee, or its affiliate, provides services in a capacity other than as trustee is not presumed to be affected by a conflict between personal and fiduciary interests if the investment otherwise complies with the Uniform Prudent Investor Act. In underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 509 - addition to its compensation for acting as trustee, the trustee may be compensated by the investment company or investment trust for providing those services out of fees charged to the trust. If the trustee receives compensation from the investment company or investment trust for providing investment advisory or investment services, the trustee at least annually shall notify the persons entitled under Section 46A-8-813 NMSA 1978 to receive a copy of the trustee's annual report of the rate and method by which the compensation was determined. G. In voting shares of stock or in exercising powers of control over similar interests in other forms of enterprise, the trustee shall act in the best interests of the beneficiaries. If the trust is the sole owner of a corporation or other form of enterprise, the trustee shall elect or appoint directors or other managers who will manage the corporation or enterprise in the best interests of the beneficiaries. H. This section does not preclude the following transactions, if fair to the beneficiaries: (1) an agreement between a trustee and a beneficiary relating to the appointment or compensation of the trustee; (2) payment of reasonable compensation to the trustee; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 510 - (3) a transaction between a trust and another trust, decedent's estate or conservatorship of which the trustee is a fiduciary or in which a beneficiary has an interest; (4) a deposit of trust money in a regulated financial-service institution operated by the trustee; or (5) an advance by the trustee of money for the protection of the trust. I. The court may appoint a special fiduciary to make a decision with respect to any proposed transaction that might violate this section if entered into by the trustee." Section 261. Section 46A-10-1007 NMSA 1978 (being Laws 2003, Chapter 122, Section 10-1006) is amended to read: "46A-10-1007. EVENT AFFECTING ADMINISTRATION OR DISTRIBUTION.--If the happening of an event, including marriage, entry into a domestic partnership, divorce, dissolution of domestic partnership, performance of educational requirements or death, affects the administration or distribution of a trust, a trustee who has exercised reasonable care to ascertain the happening of the event is not liable for a loss resulting from the trustee's lack of knowledge." Section 262. Section 46A-10-1011 NMSA 1978 (being Laws 2007, Chapter 128, Section 28) is amended to read: "46A-10-1011. INTEREST AS GENERAL PARTNER.-- underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 511 - A. Except as otherwise provided in Subsection C of this section or unless personal liability is imposed in the contract, a trustee who holds an interest as a general partner in a general or limited partnership is not personally liable on a contract entered into by the partnership after the trust's acquisition of the interest if the fiduciary capacity was disclosed in the contract or in a statement previously filed or recorded pursuant to the provisions of any version of the Uniform Partnership Act (1994) or the Uniform Limited Partnership Act. B. Except as otherwise provided in Subsection C of this section, a trustee who holds an interest as a general partner is not personally liable for torts committed by the partnership or for obligations arising from ownership or control of the interest unless the trustee is personally at fault. C. The immunity provided by this section does not apply if an interest in the partnership is held by the trustee in a capacity other than that of trustee or is held by the trustee's spouse or domestic partner or one or more of the trustee's descendants, siblings or parents, or the spouse or domestic partner of any of them. D. If the trustee of a revocable trust holds an interest as a general partner, the settlor is personally liable for contracts and other obligations of the partnership underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 512 - as if the settlor were a general partner." Section 263. Section 46B-1-116 NMSA 1978 (being Laws 2007, Chapter 135, Section 116) is amended to read: "46B-1-116. JUDICIAL RELIEF.-- A. The following persons may petition a court to construe a power of attorney or review the agent's conduct and grant appropriate relief: (1) the principal or the agent; (2) a guardian, conservator or other fiduciary acting for the principal; (3) a person authorized to make health care decisions for the principal; (4) the principal's spouse, domestic partner, parent or descendant; (5) an individual who would qualify as a presumptive heir of the principal; (6) a person named as a beneficiary to receive any property, benefit or contractual right on the principal's death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal's estate; (7) a governmental agency having regulatory authority to protect the welfare of the principal; (8) the principal's caregiver or another person that demonstrates sufficient interest in the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 513 - principal's welfare; and (9) a person asked to accept the power of attorney. B. Upon motion by the principal, the court shall dismiss a petition filed under this section, unless the court finds that the principal lacks capacity to revoke the agent's authority or the power of attorney." Section 264. Section 46B-1-201 NMSA 1978 (being Laws 2007, Chapter 135, Section 201) is amended to read: "46B-1-201. AUTHORITY THAT REQUIRES SPECIFIC GRANT-- GRANT OF GENERAL AUTHORITY.-- A. An agent under a power of attorney may do the following on behalf of the principal or with the principal's property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject: (1) create, amend, revoke or terminate an inter vivos trust; (2) make a gift; (3) create or change rights of survivorship; (4) create or change a beneficiary designation; (5) delegate authority granted under the power of attorney; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 514 - (6) waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; (7) exercise fiduciary powers that the principal has authority to delegate; or (8) disclaim property, including a power of appointment. B. Notwithstanding a grant of authority to do an act described in Subsection A of this section, unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse, domestic partner or descendant of the principal shall not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal's property, whether by gift, right of survivorship, beneficiary designation, disclaimer or otherwise. C. Subject to Subsections A, B, D and E of this section, if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in Sections [204 through 216 of the Uniform Power of Attorney Act] 46B-1-204 through 46B-1-216 NMSA 1978. D. Unless the power of attorney otherwise provides, a grant of authority to make a gift is subject to the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 515 - provisions of Section [217 of the Uniform Power of Attorney Act] 46B-1-217 NMSA 1978. E. Subject to Subsections A, B and D of this section, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority controls. F. Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed or acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state. G. An act performed by an agent pursuant to a power of attorney has the same effect and inures to the benefit of and binds the principal and the principal's successors in interest as if the principal had performed the act." Section 265. Section 46B-1-210 NMSA 1978 (being Laws 2007, Chapter 135, Section 210) is amended to read: "46B-1-210. INSURANCE AND ANNUITIES.--Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to insurance and annuities authorizes the agent to: A. continue, pay the premium or make a contribution on, modify, exchange, rescind, release or terminate a contract procured by or on behalf of the principal that underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 516 - insures or provides an annuity to either the principal or another person, whether or not the principal is a beneficiary under the contract; B. procure new, different and additional contracts of insurance and annuities for the principal and the principal's spouse or domestic partner, children and other dependents and select the amount, type of insurance or annuity and mode of payment; C. pay the premium or make a contribution on, modify, exchange, rescind, release or terminate a contract of insurance or annuity procured by the agent; D. apply for and receive a loan secured by a contract of insurance or annuity; E. surrender and receive the cash surrender value on a contract of insurance or annuity; F. exercise an election; G. exercise investment powers available under a contract of insurance or annuity; H. change the manner of paying premiums on a contract of insurance or annuity; I. change or convert the type of insurance or annuity with respect to which the principal has or claims to have authority described in this section; J. apply for and procure a benefit or assistance under a statute or regulation to guarantee or pay premiums of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 517 - a contract of insurance on the life of the principal; K. collect, sell, assign, hypothecate, borrow against or pledge the interest of the principal in a contract of insurance or annuity; L. select the form and timing of the payment of proceeds from a contract of insurance or annuity; and M. pay, from proceeds or otherwise, compromise or contest and apply for refunds in connection with a tax or assessment levied by a taxing authority with respect to a contract of insurance or annuity or its proceeds or liability accruing by reason of the tax or assessment." Section 266. Section 46B-1-213 NMSA 1978 (being Laws 2007, Chapter 135, Section 213) is amended to read: "46B-1-213. PERSONAL AND FAMILY MAINTENANCE.-- A. Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to personal and family maintenance authorizes the agent to: (1) perform the acts necessary to maintain the customary standard of living of the principal, the principal's spouse or domestic partner and the following individuals, whether living when the power of attorney is executed or later born: (a) the principal's children; (b) other individuals legally entitled to underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 518 - be supported by the principal; and (c) the individuals whom the principal has customarily supported or indicated the intent to support; (2) make periodic payments of child support and other family maintenance required by a court or governmental agency or an agreement to which the principal is a party; (3) provide living quarters for the individuals described in Paragraph (1) of this subsection by: (a) purchase, lease or other contract; or (b) paying the operating costs, including interest, amortization payments, repairs, improvements and taxes, for premises owned by the principal or occupied by those individuals; (4) provide normal domestic help, usual vacations and travel expenses and funds for shelter, clothing, food, appropriate education, including post- secondary and vocational education, and other current living costs for the individuals described in Paragraph (1) of this subsection; (5) pay expenses for necessary health care and custodial care on behalf of the individuals described in Paragraph (1) of this subsection; (6) act as the principal's personal representative pursuant to the federal Health Insurance underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 519 - Portability and Accountability Act of 1996, Sections 1171 through 1179 of the federal Social Security Act, 42 U.S.C. Section 1320d, as amended, and applicable regulations, in making decisions related to the past, present or future payment for the provision of health care consented to by the principal or anyone authorized under the law of this state to consent to health care on behalf of the principal; (7) continue any provision made by the principal for automobiles or other means of transportation, including registering, licensing, insuring and replacing them, for the individuals described in Paragraph (1) of this subsection; (8) maintain credit and debit accounts for the convenience of the individuals described in Paragraph (1) of this subsection and open new accounts; and (9) continue payments incidental to the membership or affiliation of the principal in a religious institution, club, society, order or other organization or continue contributions to those organizations. B. Authority with respect to personal and family maintenance is neither dependent upon, nor limited by, authority that an agent may or may not have with respect to gifts under the Uniform Power of Attorney Act." Section 267. Section 46B-1-301 NMSA 1978 (being Laws 2007, Chapter 135, Section 301) is amended to read: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 520 - "46B-1-301. STATUTORY FORM POWER OF ATTORNEY.--A document substantially in the following form may be used to create a statutory form power of attorney that has the meaning and effect prescribed by the Uniform Power of Attorney Act: "NEW MEXICO STATUTORY FORM POWER OF ATTORNEY IMPORTANT INFORMATION This power of attorney authorizes another person (your agent) to make decisions concerning your property for you (the principal). Your agent will be able to make decisions and act with respect to your property (including your money) whether or not you are able to act for yourself. The meaning of authority over subjects listed on this form is explained in the Uniform Power of Attorney Act. This power of attorney does not authorize the agent to make health care decisions for you. You should select someone you trust to serve as your agent. Unless you specify otherwise, generally the agent's authority will continue until you die or revoke the power of attorney or the agent resigns or is unable to act for you. Your agent is entitled to reasonable compensation unless you state otherwise in the Special Instructions. This form provides for designation of one agent. If you wish to name more than one agent, you may name a co-agent in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 521 - the Special Instructions. Co-agents are not required to act together unless you include that requirement in the Special Instructions. If your agent is unable or unwilling to act for you, your power of attorney will end unless you have named a successor agent. You may also name a second successor agent. This power of attorney becomes effective immediately unless you state otherwise in the Special Instructions. If you have questions about the power of attorney or the authority you are granting to your agent, you should seek legal advice before signing this form. DESIGNATION OF AGENT I,_______________________________________________________, (Your Name) name the following person as my agent: Name of Agent: ___________________________________________ Agent's Address: ___________________________________________ Agent's Telephone Number:____________________________________ DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL) If my agent is unable or unwilling to act for me, I name as my successor agent: Name of Successor Agent: _____________________________________ Successor Agent's Address: _____________________________________ underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 522 - Successor Agent's Telephone Number: ______________________________________ If my successor agent is unable or unwilling to act for me, I name as my second successor agent: Name of Second Successor Agent: ______________________________________ Second Successor Agent's Address: ______________________________________ Second Successor Agent's Telephone Number: ______________________________________ GRANT OF GENERAL AUTHORITY I grant my agent and any successor agent general authority to act for me with respect to the following subjects as defined in the Uniform Power of Attorney Act: (INITIAL each subject you want to include in the agent's general authority. If you wish to grant general authority over all of the subjects, you may initial "All Preceding Subjects" instead of initialing each subject.) (___) Real Property (___) Tangible Personal Property (___) Stocks and Bonds (___) Commodities and Options (___) Banks and Other Financial Institutions (___) Operation of Entity or Business (___) Insurance and Annuities underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 523 - (___) Estates, Trusts and Other Beneficial Interests (___) Claims and Litigation (___) Personal and Family Maintenance (___) Benefits from Governmental Programs or Civil or Military Service (___) Retirement Plans (___) Taxes (___) All Preceding Subjects GRANT OF SPECIFIC AUTHORITY (OPTIONAL) My agent MAY NOT do any of the following specific acts for me UNLESS I have INITIALED the specific authority listed below: (CAUTION: Granting any of the following will give your agent the authority to take actions that could significantly reduce your property or change how your property is distributed at your death. INITIAL ONLY the specific authority you WANT to give your agent.) (___) Create, amend, revoke or terminate an inter vivos trust (___) Make a gift, subject to the limitations of Section [217 of the Uniform Power of Attorney Act] 46B-1-217 NMSA 1978 and any special instructions in this power of attorney (___) Create or change rights of survivorship (___) Create or change a beneficiary designation underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 524 - (___) Authorize another person to exercise the authority granted under this power of attorney (___) Waive the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan (___) Exercise fiduciary powers that the principal has authority to delegate (___) Disclaim or refuse an interest in property, including a power of appointment LIMITATION ON AGENT'S AUTHORITY An agent that is not my ancestor, spouse, domestic partner or descendant MAY NOT use my property to benefit the agent or a person to whom the agent owes an obligation of support unless I have included that authority in the Special Instructions. SPECIAL INSTRUCTIONS (OPTIONAL) You may give special instructions on the following lines: _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ EFFECTIVE DATE underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 525 - This power of attorney is effective immediately unless I have stated otherwise in the Special Instructions. NOMINATION OF CONSERVATOR OR GUARDIAN (OPTIONAL) If it becomes necessary for a court to appoint a conservator or guardian of my estate or guardian of my person, I nominate the following person(s) for appointment: Name of Nominee for conservator of my estate: _____________________________________________________________ Nominee's Address: ___________________________________________ Nominee's Telephone Number: ___________________________________________ Name of Nominee for guardian of my person: ___________________________________________ Nominee's Address: ___________________________________________ Nominee's Telephone Number: ___________________________________________ RELIANCE ON THIS POWER OF ATTORNEY Any person, including my agent, may rely upon the validity of this power of attorney or a copy of it unless that person knows it has terminated or is invalid. SIGNATURE AND ACKNOWLEDGMENT Your Signature: ______________________________ Date: ________________________________________ underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 526 - Your Name Printed: ___________________________ Your Address: ________________________________ Your Telephone Number: _______________________ State of _____________________________________ (County) of ___________________________________ This instrument was acknowledged before me on __________________, ___________________ (Date) by______________________________________ (Name of Principal). (Seal, if any) Signature of notarial officer: _________________________________________ My commission expires: ________________________ IMPORTANT INFORMATION FOR AGENT Agent's Duties When you accept the authority granted under this power of attorney, a special legal relationship is created between you and the principal. This relationship imposes upon you legal duties that continue until you resign or the power of attorney is terminated or revoked. You must: 1. do what you know the principal reasonably expects you to do with the principal's property or, if you do not know the principal's expectations, act in the principal's best interest; 2. act in good faith; 3. do nothing beyond the authority granted in this underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 527 - power of attorney; and 4. disclose your identity as an agent whenever you act for the principal by writing or printing the name of the principal and signing your own name as "agent" in the following manner: ____________________________ by __________________ as Agent (Principal's Name) (Your Signature) Unless the Special Instructions in this power of attorney state otherwise, you must also: 1. act loyally for the principal's benefit; 2. avoid conflicts that would impair your ability to act in the principal's best interest; 3. act with care, competence and diligence; 4. keep a record of all receipts, disbursements and transactions made on behalf of the principal; 5. cooperate with any person that has authority to make health care decisions for the principal to do what you know the principal reasonably expects or, if you do not know the principal's expectations, to act in the principal's best interest; and 6. attempt to preserve the principal's estate plan if you know the plan and preserving the plan is consistent with the principal's best interest. Termination of Agent's Authority You must stop acting on behalf of the principal if you underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 528 - learn of any event that terminates this power of attorney or your authority under this power of attorney. Events that terminate a power of attorney or your authority to act under a power of attorney include: 1. death of the principal; 2. the principal's revocation of the power of attorney or your authority; 3. the occurrence of a termination event stated in the power of attorney; 4. the purpose of the power of attorney is fully accomplished; or 5. if you are married to or in a domestic partnership with the principal, a legal action is filed with a court to end your marriage or domestic partnership or for your legal separation, unless the Special Instructions in this power of attorney state that such an action will not terminate your authority. Liability of Agent The meaning of the authority granted to you is defined in the Uniform Power of Attorney Act. If you violate the Uniform Power of Attorney Act or act outside the authority granted, you may be liable for any damages caused by your violation. If there is anything about this document or your duties that you do not understand, you should seek legal advice."." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 529 - Section 268. Section 47-1-36 NMSA 1978 (being Laws 1971, Chapter 220, Section 1) is amended to read: "47-1-36. JOINT TENANCIES DEFINED--CREATION.--A joint tenancy in real property is one owned by two or more persons, each owning the whole and an equal undivided share, by a title created by a single devise or conveyance, when expressly declared in the will or conveyance to be a joint tenancy, or by conveyance from a sole owner to [himself] the sole owner and others, or from tenants in common to themselves, or to themselves and others, or from husband and wife or domestic partners when holding as community property or otherwise to themselves or to themselves and others, when expressly declared in the conveyance to be a joint tenancy, or when granted or devised to executors or trustees." Section 269. Section 47-6-2 NMSA 1978 (being Laws 1973, Chapter 348, Section 2, as amended) is amended to read: "47-6-2. DEFINITIONS.--As used in the New Mexico Subdivision Act: A. "board of county commissioners" means the governing board of a county; B. "common promotional plan" means a plan or scheme of operation, undertaken by a single subdivider or a group of subdividers acting in concert, to offer for sale or lease parcels of land where the land is either contiguous or part of the same area of land or is known, designated or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 530 - advertised as a common unit or by a common name; C. "final plat" means a map, chart, survey, plan or replat certified by a licensed, registered land surveyor containing a description of the subdivided land with ties to permanent monuments prepared in a form suitable for filing of record; D. "immediate family member" means a husband, wife, domestic partner, father, stepfather, mother, stepmother, brother, stepbrother, sister, stepsister, son, stepson, daughter, stepdaughter, grandson, stepgrandson, granddaughter, stepgranddaughter, nephew and niece, whether related by natural birth or adoption; E. "Indian nation, tribe or pueblo" means any federally recognized Indian nation, tribe or pueblo located wholly or partially in New Mexico; F. "lease" means to lease or offer to lease land; G. "parcel" means land capable of being described by location and boundaries and not dedicated for public or common use; H. "person" means any individual, estate, trust, receiver, cooperative association, club, corporation, company, firm, partnership, joint venture, syndicate or other entity; I. "preliminary plat" means a map of a proposed subdivision showing the character and proposed layout of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 531 - subdivision and the existing conditions in and around it and need not be based upon an accurate and detailed survey of the land; J. "sell" means to sell or offer to sell land; K. "subdivide" means to divide a surface area of land into a subdivision; L. "subdivider" means any person who creates or who has created a subdivision individually or as part of a common promotional plan or any person engaged in the sale, lease or other conveyance of subdivided land; however, "subdivider" does not include any duly licensed real estate broker or salesperson acting on another's account; M. "subdivision" means the division of a surface area of land, including land within a previously approved subdivision, into two or more parcels for the purpose of sale, lease or other conveyance or for building development, whether immediate or future; but "subdivision" does not include: (1) the sale, lease or other conveyance of any parcel that is thirty-five acres or larger in size within any twelve-month period, provided that the land has been used primarily and continuously for agricultural purposes, in accordance with Section 7-36-20 NMSA 1978, for the preceding three years; (2) the sale or lease of apartments, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 532 - offices, stores or similar space within a building; (3) the division of land within the boundaries of a municipality; (4) the division of land in which only gas, oil, mineral or water rights are severed from the surface ownership of the land; (5) the division of land created by court order where the order creates no more than one parcel per party; (6) the division of land for grazing or farming activities; provided the land continues to be used for grazing or farming activities; (7) the division of land resulting only in the alteration of parcel boundaries where parcels are altered for the purpose of increasing or reducing the size of contiguous parcels and where the number of parcels is not increased; (8) the division of land to create burial plots in a cemetery; (9) the division of land to create a parcel that is sold or donated as a gift to an immediate family member; however, this exception shall be limited to allow the seller or donor to sell or give no more than one parcel per tract of land per immediate family member; (10) the division of land created to provide underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 533 - security for mortgages, liens or deeds of trust; provided that the division of land is not the result of a seller- financed transaction; (11) the sale, lease or other conveyance of land that creates no parcel smaller than one hundred forty acres; (12) the division of land to create a parcel that is donated to any trust or nonprofit corporation granted an exemption from federal income tax, as described in Section 501(c)(3) of the United States Internal Revenue Code of 1986, as amended; school, college or other institution with a defined curriculum and a student body and faculty that conducts classes on a regular basis; or church or group organized for the purpose of divine worship, religious teaching or other specifically religious activity; or (13) the sale, lease or other conveyance of a single parcel from a tract of land, except from a tract within a previously approved subdivision, within any five- year period; provided that a second or subsequent sale, lease or other conveyance from the same tract of land within five years of the first sale, lease or other conveyance shall be subject to the provisions of the New Mexico Subdivision Act; provided further that a survey shall be filed with the county clerk indicating the five-year holding period for both the original tract and the newly created tract; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 534 - N. "terrain management" means the control of floods, drainage and erosion and measures required for adapting proposed development to existing soil characteristics and topography; O. "time of purchase, lease or other conveyance" means the time of signing any document obligating the person signing the document to purchase, lease or otherwise acquire a legal interest in land; P. "type-one subdivision" means any subdivision containing five hundred or more parcels, any one of which is less than ten acres in size; Q. "type-two subdivision" means any subdivision containing not fewer than twenty-five but not more than four hundred ninety-nine parcels, any one of which is less than ten acres in size; R. "type-three subdivision" means any subdivision containing not more than twenty-four parcels, any one of which is less than ten acres in size; S. "type-four subdivision" means any subdivision containing twenty-five or more parcels, each of which is ten acres or more in size; and T. "type-five subdivision" means any subdivision containing not more than twenty-four parcels, each of which is ten acres or more in size." Section 270. Section 48-7-20 NMSA 1978 (being Laws underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 535 - 1983, Chapter 314, Section 6) is amended to read: "48-7-20. LIMITATION OF EXERCISE OF ALL DUE-ON-SALE OPTIONS.--A lender may not exercise its option pursuant to a due-on-sale clause upon: A. the creation of a lien or other encumbrance subordinate to the lender's security instrument [which] that does not relate to a transfer of rights of occupancy in the property; B. the creation of a purchase money security interest for household appliances; C. a transfer by devise, descent or operation of law on the death of a joint tenant or tenant by the entirety; D. the granting of a leasehold interest of three years or less not containing an option to purchase; E. a transfer to a relative resulting from the death of a borrower; F. a transfer where the spouse, domestic partner or children of the borrower become an owner of the property; G. a transfer resulting from a decree of a dissolution of marriage or domestic partnership, legal separation agreement or from an incidental property settlement agreement, by which the spouse or domestic partner of the borrower becomes an owner of the property; or H. a transfer into an inter vivos trust in which the borrower is and remains a beneficiary and which does not underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 536 - relate to a transfer of rights of occupancy in the property." Section 271. Section 50-4-21 NMSA 1978 (being Laws 1955, Chapter 200, Section 2, as amended) is amended to read: "50-4-21. DEFINITIONS.--As used in the Minimum Wage Act: A. "employ" includes suffer or permit to work; B. "employer" includes any individual, partnership, association, corporation, business trust, legal representative or any organized group of persons employing one or more employees at any one time, acting directly or indirectly in the interest of an employer in relation to an employee, but shall not include the United States, the state or any political subdivision of the state; provided, however, that for the purposes of Subsection A of Section 50-4-22 NMSA 1978, "employer" includes the state or any political subdivision of the state; and C. "employee" includes an individual employed by an employer, but shall not include: (1) an individual employed in domestic service in or about a private home; (2) an individual employed in a bona fide executive, administrative or professional capacity and forepersons, superintendents and supervisors; (3) an individual employed by the United States, the state or any political subdivision of the state; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 537 - provided, however, that for the purposes of Subsection A of Section 50-4-22 NMSA 1978, "employee" includes an individual employed by the state or any political subdivision of the state; (4) an individual engaged in the activities of an educational, charitable, religious or nonprofit organization where the employer-employee relationship does not, in fact, exist or where the services rendered to such organizations are on a voluntary basis. The employer- employee relationship shall not be deemed to exist with respect to an individual being served for purposes of rehabilitation by a charitable or nonprofit organization, notwithstanding the payment to the individual of a stipend based upon the value of the work performed by the individual; (5) salespersons or employees compensated upon piecework, flat rate schedules or commission basis; (6) students regularly enrolled in primary or secondary schools working after school hours or on vacation; (7) registered apprentices and learners otherwise provided by law; (8) persons eighteen years of age or under who are not students in a primary, secondary, vocational or training school; (9) persons eighteen years of age or under underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 538 - who are not graduates of a secondary school; (10) G.I. bill trainees while under training; (11) seasonal employees of an employer obtaining and holding a valid certificate issued annually by the director of the labor relations division of the workforce solutions department. The certificate shall state the job designations and total number of employees to be exempted. In approving or disapproving an application for a certificate of exemption, the director shall consider the following: (a) whether such employment shall be at an educational, charitable or religious youth camp or retreat; (b) that such employment will be of a temporary nature; (c) that the individual will be furnished room and board in connection with such employment, or if the camp or retreat is a day camp or retreat, the individual will be furnished board in connection with such employment; (d) the purposes for which the camp or retreat is operated; (e) the job classifications for the positions to be exempted; and (f) any other factors that the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 539 - director deems necessary to consider; (12) any employee employed in agriculture: (a) if the employee is employed by an employer who did not, during any calendar quarter during the preceding calendar year, use more than five hundred man-days of agricultural labor; (b) if the employee is the parent, spouse, domestic partner, child or other member of the employer's immediate family; for the purpose of this subsection, the employer shall include the principal stockholder of a family corporation; (c) if the employee: 1) is employed as a hand-harvest laborer and is paid on a piece-rate basis in an operation that has been, and is customarily and generally recognized as having been, paid on a piece-rate basis in the region of employment; 2) commutes daily from the employee's permanent residence to the farm on which the employee is so employed; and 3) has been employed in agriculture less than thirteen weeks during the preceding calendar year; (d) if the employee, other than an employee described in Subparagraph (c) of this paragraph: 1) is sixteen years of age or under and is employed as a hand-harvest laborer, is paid on a piece-rate basis in an operation that has been, and is generally recognized as underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 540 - having been, paid on a piece-rate basis in the region of employment; 2) is employed on the same farm as the employee's parent or person standing in the place of the parent; and 3) is paid at the same piece-rate as employees over age sixteen are paid on the same farm; or (e) if the employee is principally engaged in the range production of livestock or in milk production; (13) an employee engaged in the handling, drying, packing, packaging, processing, freezing or canning of any agricultural or horticultural commodity in its unmanufactured state; or (14) employees of charitable, religious or nonprofit organizations who reside on the premises of group homes operated by such charitable, religious or nonprofit organizations for persons who have a mental, emotional or developmental disability." Section 272. Section 51-1-4 NMSA 1978 (being Laws 2003, Chapter 47, Section 8, as amended) is amended to read: "51-1-4. MONETARY COMPUTATION OF BENEFITS--PAYMENT GENERALLY.-- A. All benefits provided herein are payable from the unemployment compensation fund. All benefits shall be paid in accordance with rules prescribed by the secretary through employment offices or other agencies as the secretary underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 541 - approves by general rule. B. Weekly benefits shall be as follows: (1) except as provided in Paragraph (2) of this subsection, an individual's "weekly benefit amount" is an amount equal to fifty-three and one-half percent of the average weekly wage for insured work paid to the individual in that quarter of the individual's base period in which total wages were highest. No benefit as so computed may be less than ten percent or more than fifty-three and one-half percent of the state's average weekly wage for all insured work. The state's average weekly wage shall be computed from all wages reported to the department from employing units in accordance with rules of the secretary for the period ending June 30 of each calendar year divided by the total number of covered employees divided by fifty-two, effective for the benefit years commencing on or after the first Sunday of the following calendar year. An individual is not eligible to receive benefits unless the individual has wages in at least two quarters of that individual's base period. For the purposes of this subsection, "total wages" means all remuneration for insured work, including commissions and bonuses and the cash value of all remuneration in a medium other than cash; (2) from July 1, 2009 through June 30, 2011, an individual's "weekly benefit amount" shall be an amount underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 542 - equal to sixty percent of the average weekly wage for insured work paid to the individual in that quarter of the individual's base period in which total wages were highest, and no benefit as so computed may be less than ten percent or more than sixty percent of the state's average weekly wage for all insured work; (3) an eligible individual who is unemployed in any week during which the individual is in a continued claims status shall be paid, with respect to the week, a benefit in an amount equal to the individual's weekly benefit amount, less that part of the wages, if any, or earnings from self-employment, payable to the individual with respect to such week that is in excess of one-fifth of the individual's weekly benefit amount. For purposes of this subsection only, "wages" includes all remuneration for services actually performed in a week for which benefits are claimed, vacation pay for a period for which the individual has a definite return-to-work date, wages in lieu of notice and back pay for loss of employment but does not include payments through a court for time spent in jury service; (4) notwithstanding any other provision of this section, an eligible individual who, pursuant to a plan financed in whole or in part by a base-period employer of the individual, is receiving a governmental or other pension, retirement pay, annuity or any other similar periodic payment underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 543 - that is based on the previous work of the individual and who is unemployed with respect to any week ending subsequent to April 9, 1981 shall be paid with respect to the week, in accordance with rules prescribed by the secretary, compensation equal to the individual's weekly benefit amount reduced, but not below zero, by the prorated amount of the pension, retirement pay, annuity or other similar periodic payment that exceeds the percentage contributed to the plan by the eligible individual. The maximum benefit amount payable to the eligible individual shall be an amount not more than twenty-six times the individual's reduced weekly benefit amount. If payments referred to in this section are being received by an individual under the federal Social Security Act, the division shall take into account the individual's contribution and make no reduction in the weekly benefit amount; (5) in the case of a lump-sum payment of a pension, retirement or retired pay, annuity or other similar payment by a base-period employer that is based on the previous work of the individual, the payment shall be allocated, in accordance with rules prescribed by the secretary, and shall reduce the amount of unemployment compensation paid, but not below zero, in accordance with Paragraph (4) of this subsection; and (6) the retroactive payment of a pension, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 544 - retirement or retired pay, annuity or any other similar periodic payment as provided in Paragraphs (4) and (5) of this subsection attributable to weeks during which an individual has claimed or has been paid unemployment compensation shall be allocated to those weeks and shall reduce the amount of unemployment compensation for those weeks, but not below zero, by an amount equal to the prorated amount of the pension. Any overpayment of unemployment compensation benefits resulting from the application of the provisions of this paragraph shall be recovered from the claimant in accordance with the provisions of Section 51-1-38 NMSA 1978. C. An individual otherwise eligible for benefits shall be paid for each week of unemployment, in addition to the amount payable under Subsection B of this section, the sum of twenty-five dollars ($25.00) for each unemancipated child under the age of eighteen, up to a maximum of four and subject to the maximum stated in Subsection D of this section, of the individual who is in fact dependent upon and wholly or mainly supported by the individual, including: (1) a child in the individual's custody pending the adjudication of a petition filed by the individual for the adoption of the child in a court of competent jurisdiction; or (2) a child for whom the individual, under a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 545 - decree or order from a court of competent jurisdiction, is required to contribute to the child's support and for whom no other person is receiving allowances under the Unemployment Compensation Law if the child is domiciled within the United States or its territories or possessions, the payment to be withheld and paid pursuant to Section 51-1-37.1 NMSA 1978. D. Dependency benefits shall not exceed fifty percent of the individual's weekly benefit rate. The amount of dependency benefits determined as of the beginning of an individual's benefit year shall not be reduced for the duration of the benefit year, but this provision does not prevent the transfer of dependents' benefits from one spouse or domestic partner to another in accordance with this subsection. If both the husband and wife or both domestic partners receive benefits with respect to a week of unemployment, only one of them is entitled to a dependency allowance with respect to a child. The division shall prescribe standards as to who may receive a dependency allowance when both the husband and wife or both domestic partners are eligible to receive unemployment compensation benefits. Dependency benefits shall not be paid unless the individual submits documentation satisfactory to the division establishing the existence of the claimed dependent. If the provisions of this subsection are satisfied, an otherwise eligible individual who has been appointed guardian of a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 546 - dependent child by a court of competent jurisdiction shall be paid dependency benefits. E. An otherwise eligible individual is entitled during any benefit year to a total amount of benefits equal to whichever is the lesser of twenty-six times the individual's weekly benefit amount, plus any dependency benefit amount pursuant to Subsections C and D of this section, or sixty percent of the individual's wages for insured work paid during the individual's base period. F. A benefit as determined in Subsection B or C of this section, if not a multiple of one dollar ($1.00), shall be rounded to the next lower multiple of one dollar ($1.00). G. The secretary may prescribe rules to provide for the payment of benefits that are due and payable to the legal representative, dependents, relatives or next of kin of claimants since deceased. These rules need not conform with the laws governing successions, and the payment shall be deemed a valid payment to the same extent as if made under a formal administration of the succession of the claimant. H. The division, on its own initiative, may reconsider a monetary determination whenever it is determined that an error in computation or identity has occurred or that wages of the claimant pertinent to such determination but not considered have been newly discovered or that the benefits underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 547 - have been allowed or denied on the basis of misrepresentation of fact, but no redetermination shall be made after one year from the date of the original monetary determination. Notice of a redetermination shall be given to all interested parties and shall be subject to an appeal in the same manner as the original determination. In the event that an appeal involving an original monetary determination is pending at the time a redetermination is issued, the appeal, unless withdrawn, shall be treated as an appeal from redetermination." Section 273. Section 51-1-7 NMSA 1978 (being Laws 2003, Chapter 47, Section 10, as amended by Laws 2005, Chapter 3, Section 3 and further amended by Laws 2005, Chapter 255, Section 1) is amended to read: "51-1-7. DISQUALIFICATION FOR BENEFITS.-- A. An individual shall be disqualified for and shall not be eligible to receive benefits: (1) if it is determined by the division that the individual left employment voluntarily without good cause in connection with the employment. No individual shall receive benefits until the division has contacted the former employer and determined whether the individual left the employment voluntarily; provided, however, that a person shall not be denied benefits under this paragraph: (a) solely on the basis of pregnancy underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 548 - or the termination of pregnancy; (b) because of domestic abuse evidenced by medical documentation, legal documentation or a sworn statement from the claimant; or (c) if the person voluntarily left work to relocate because of a spouse or domestic partner, who is in the military service of the United States or the New Mexico national guard, receiving permanent change of station orders, activation orders or unit deployment orders; (2) if it is determined by the division that the individual has been discharged for misconduct connected with the individual's employment; or (3) if it is determined by the division that the individual has failed without good cause either to apply for available, suitable work when so directed or referred by the division or to accept suitable work when offered. B. In determining whether or not any work is suitable for an individual pursuant to Paragraph (3) of Subsection A of this section, the division shall consider the degree of risk involved to the individual's health, safety and morals, the individual's physical fitness, prior training, approved training or full-time school attendance, experience, prior earnings, length of unemployment and prospects for securing local work in the individual's customary occupation and the distance of available work from underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 549 - the individual's residence. Notwithstanding any other provisions of the Unemployment Compensation Law, no work shall be deemed suitable and benefits shall not be denied under the Unemployment Compensation Law to any otherwise eligible individual for refusing to accept new work under any of the following conditions: (1) if the position offered is vacant due directly to a strike, lockout or other labor dispute; (2) if the wages, hours or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; or (3) if, as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organizations. C. An individual shall be disqualified for, and shall not be eligible to receive, benefits for any week with respect to which the division finds that the individual's unemployment is due to a labor dispute at the factory, establishment or other premises at which the individual is or was last employed; provided that this subsection shall not apply if it is shown to the satisfaction of the division that: (1) the individual is not participating in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 550 - or directly interested in the labor dispute; and (2) the individual does not belong to a grade or class of workers of which, immediately before the commencement of the labor dispute, there were members employed at the premises at which the labor dispute occurs, any of whom are participating in or directly interested in the dispute; provided that if in any case separate branches of work that are commonly conducted in separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purposes of this subsection, be deemed to be a separate factory, establishment or other premises. D. An individual shall be disqualified for, and shall not be eligible to receive, benefits for any week with respect to which, or a part of which, the individual has received or is seeking, through any agency other than the division, unemployment benefits under an unemployment compensation law of another state or of the United States; provided that if the appropriate agency of such other state or of the United States finally determines that the individual is not entitled to such unemployment benefits, this disqualification shall not apply. E. A disqualification pursuant to Paragraph (1) or (2) of Subsection A of this section shall continue for the duration of the individual's unemployment and until the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 551 - individual has earned wages in bona fide employment other than self-employment, as provided by rule of the secretary, in an amount equivalent to five times the individual's weekly benefit otherwise payable. A disqualification pursuant to Paragraph (3) of Subsection A of this section shall include the week the failure occurred and shall continue for the duration of the individual's unemployment and until the individual has earned wages in bona fide employment other than self-employment, as provided by rule of the secretary, in an amount equivalent to five times the individual's weekly benefit amount otherwise payable; provided that no more than one such disqualification shall be imposed upon an individual for failure to apply for or accept the same position, or a similar position, with the same employer, except upon a determination by the division of disqualification pursuant to Subsection C of this section. F. As used in this section: (1) "domestic abuse" means that term as defined in Section 40-13-2 NMSA 1978; and (2) "employment" means employment by the individual's last employer as defined by rules of the secretary." Section 274. Section 51-1-11 NMSA 1978 (being Laws 2003, Chapter 47, Section 11, as amended) is amended to read: "51-1-11. FUTURE RATES BASED ON BENEFIT EXPERIENCE.-- underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 552 - A. The division shall maintain a separate account for each contributing employer and shall credit the contributing employer's account with all contributions paid by that employer under the Unemployment Compensation Law. Nothing in the Unemployment Compensation Law shall be construed to grant an employer or individuals in the employer's service prior claims or rights to the amounts paid by the employer into the fund. B. Benefits paid to an individual shall be charged against the accounts of the individual's base-period employers on a pro rata basis according to the proportion of the individual's total base-period wages received from each employer, except that no benefits paid to a claimant as extended benefits under the provisions of Section 51-1-48 NMSA 1978 shall be charged to the account of any base-period employer who is not on a reimbursable basis and who is not a governmental entity and, except as the secretary shall by rule prescribe otherwise, in the case of benefits paid to an individual who: (1) left the employ of a base-period employer who is not on a reimbursable basis voluntarily without good cause in connection with the individual's employment; (2) was discharged from the employment of a base-period employer who is not on a reimbursable basis for underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 553 - misconduct connected with the individual's employment; (3) is employed part time by a base-period employer who is not on a reimbursable basis and who continues to furnish the individual the same part-time work while the individual is separated from full-time work for a nondisqualifying reason; or (4) received benefits based upon wages earned from a base-period employer who is not on a reimbursable basis while attending approved training or school on a full-time basis under the provisions of Subsection E of Section 51-1-5 NMSA 1978. C. The division shall not charge a contributing or reimbursing base-period employer's account with any portion of benefit amounts that the division can bill to or recover from the federal government as either regular or extended benefits. D. The division shall not charge a contributing base-period employer's account with any portion of benefits paid to an individual for dependent allowance or because the individual to whom benefits are paid: (1) separated from employment due to domestic abuse, as "domestic abuse" is defined in Section 40-13-2 NMSA 1978; (2) is enrolled in approved training or is attending school on a full-time basis; or (3) voluntarily left work to relocate underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 554 - because of a spouse or domestic partner, who is in the military service of the United States or the New Mexico national guard, receiving permanent change of station orders, activation orders or unit deployment orders. E. All contributions to the fund shall be pooled and available to pay benefits to any individual entitled thereto, irrespective of the source of the contributions. F. For each calendar year, if, as of the computation date for that year, an employer's account has been chargeable with benefits throughout the preceding thirty-six months, the secretary shall classify the employer in accordance with its actual experience of benefits charged against its accounts. For such an employer, the contribution rate shall be determined pursuant to Subsection I of this section on the basis of the employer's record and the condition of the fund as of the computation date for the calendar year. If, as of the computation date for a calendar year, an employer's account has not been chargeable with benefits throughout the preceding thirty-six months, the contribution rate for that employer for the calendar year shall be two percent, except that: (1) an individual, type of organization or employing unit that acquires all or part of the trade or business of another employing unit, pursuant to Paragraphs (2) and (3) of Subsection E of Section 51-1-42 NMSA 1978, that has underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 555 - a rate of contribution less than two percent shall be entitled to the transfer of the reduced rate to the extent permitted under Subsection H of this section; (2) an employer that, at the time of establishing an account, is in business in another state or states and that is not currently doing business in New Mexico may elect, pursuant to Paragraph (3) of this subsection, to receive a beginning contribution rate of two percent or a contribution rate based on the current contribution rate schedule in Paragraph (4) of Subsection I of this section, whichever is lower, if: (a) the employer has been in operation in the other state or states for at least three years immediately preceding the date of becoming a liable employer in New Mexico, throughout which an individual in the employer's employ could have received benefits if eligible; and (b) the employer provides the authenticated account history as defined by rule of the secretary from information accumulated from operations in the other state or all the other states to compute a current New Mexico rate; and (3) the election authorized in Paragraph (2) of this subsection shall be made in writing within thirty days after receiving notice of New Mexico liability and, if not underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 556 - made timely, a two percent rate will be assigned; if the election is made timely, the employer's account will receive the lesser of the computed rate determined by the condition of the account for the computation date immediately preceding the New Mexico liable date, or two percent; rates for subsequent years will be determined by the condition of the account for the computation date. G. An employer may make voluntary payments in addition to the contributions required under the Unemployment Compensation Law, which shall be credited to the employer's account in accordance with department rule. The voluntary payments shall be included in the employer's account as of the employer's most recent computation date if they are made on or before the following March 1. Voluntary payments when accepted from an employer shall not be refunded in whole or in part. H. In the case of a transfer of an employing enterprise, notwithstanding any other provision of law, the experience history of the transferred enterprise shall be transferred from the predecessor employer to the successor under the following conditions and in accordance with the applicable rules of the secretary: (1) as used in this subsection: (a) "employing enterprise" means a business activity engaged in by a contributing employing unit underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 557 - in which one or more persons have been employed within the current or the three preceding calendar quarters. An "employing enterprise" includes the employer's workforce; (b) "predecessor" means the owner and operator of an employing enterprise immediately prior to the transfer of such enterprise; (c) "successor" means any person that acquires an employing enterprise and continues to operate such business entity; (d) "experience history" means the experience rating record and reserve account, including the actual contributions, benefit charges and payroll experience of the employing enterprise; (e) "common ownership" means that two or more businesses are substantially owned, managed or controlled by the same person or persons; (f) "knowingly" means having actual knowledge of or acting with deliberate ignorance of or reckless disregard for the prohibition involved; and (g) "violates or attempts to violate" includes an intent to evade, a misrepresentation or a willful nondisclosure; (2) except as otherwise provided in this subsection, for the purpose of this subsection, two or more employers who are parties to or the subject of any transaction underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 558 - involving the transfer of an employing enterprise shall be deemed to be a single employer and the experience history of the employing enterprise shall be transferred to the successor employer if the successor employer has acquired by the transaction all of the business enterprises of the predecessor; provided that: (a) all contributions, interest and penalties due from the predecessor employer have been paid; (b) notice of the transfer has been given in accordance with the rules of the secretary during the calendar year of the transaction transferring the employing enterprise or the date of the actual transfer of control and operation of the employing enterprise; (c) the successor shall notify the division of the acquisition on or before the due date of the successor's first wage and contribution report. If the successor employer fails to notify the division of the acquisition within this time limit, the division, when it receives actual notice, shall effect the transfer of the experience history and applicable rate of contribution retroactively to the date of the acquisition, and the successor shall pay a penalty of fifty dollars ($50.00); and (d) where the transaction involves only a merger, consolidation or other form of reorganization without a substantial change in the ownership and controlling underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 559 - interest of the business entity, as determined by the secretary, the limitations on transfers stated in Subparagraphs (a), (b) and (c) of this paragraph shall not apply. A party to a merger, consolidation or other form of reorganization described in this subparagraph shall not be relieved of liability for any contributions, interest or penalties due and owing from the employing enterprise at the time of the merger, consolidation or other form of reorganization; (3) the applicable experience history may be transferred to the successor in the case of a partial transfer of an employing enterprise if the successor has acquired one or more of the several employing enterprises of a predecessor but not all of the employing enterprises of the predecessor and each employing enterprise so acquired was operated by the predecessor as a separate store, factory, shop or other separate employing enterprise and the predecessor, throughout the entire period of the contribution with liability applicable to each enterprise transferred, has maintained and preserved payroll records that, together with records of contribution liability and benefit chargeability, can be separated by the parties from the enterprises retained by the predecessor to the satisfaction of the secretary or the secretary's delegate. A partial experience history transfer will be made only if the successor: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 560 - (a) notifies the division of the acquisition, in writing, not later than the due date of the successor's first quarterly wage and contribution report after the effective date of the acquisition; (b) files an application provided by the division that contains the endorsement of the predecessor within thirty days from the delivery or mailing of such application by the division to the successor's last known address; and (c) files with the application a Form ES-903A or its equivalent with a schedule of the name and social security number of and the wages paid to and the contributions paid for each employee for the three and one- half year period preceding the computation date as defined in Subparagraph (d) of Paragraph (3) of Subsection I of this section through the date of transfer or such lesser period as the enterprises transferred may have been in operation. The application and Form ES-903A shall be supported by the predecessor's permanent employment records, which shall be available for audit by the division. The application and Form ES-903A shall be reviewed by the division and, upon approval, the percentage of the predecessor's experience history attributable to the enterprises transferred shall be transferred to the successor. The percentage shall be obtained by dividing the taxable payrolls of the transferred underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 561 - enterprises for such three and one-half year period preceding the date of computation or such lesser period as the enterprises transferred may have been in operation by the predecessor's entire payroll; (4) if, at the time of a transfer of an employing enterprise in whole or in part, both the predecessor and the successor are under common ownership, then the experience history attributable to the transferred business shall also be transferred to and combined with the experience history attributable to the successor employer. The rates of both employers shall be recalculated and made effective immediately upon the date of the transfer; (5) whenever a person, who is not currently an employer, acquires the trade or business of an employing enterprise, the experience history of the acquired business shall not be transferred to the successor if the secretary or the secretary's designee finds that the successor acquired the business solely or primarily for the purpose of obtaining a lower rate of contributions. Instead, the successor shall be assigned the applicable new employer rate pursuant to this section. In determining whether the business was acquired solely or primarily for the purpose of obtaining a lower rate of contribution, the secretary or the secretary's designee shall consider: (a) the cost of acquiring the business; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 562 - (b) whether the person continued the business enterprise of the acquired business; (c) how long such business enterprise was continued; and (d) whether a substantial number of new employees were hired for performance of duties unrelated to those that the business activity conducted prior to acquisition; (6) if, following a transfer of experience history pursuant to this subsection, the department determines that a substantial purpose of the transfer of the employing enterprise was to obtain a reduced liability for contributions, then the experience rating accounts of the employers involved shall be combined into a single account and a single rate assigned to the combined account; (7) the secretary shall adopt such rules as are necessary to interpret and carry out the provisions of this subsection, including rules that: (a) describe how experience history is to be transferred; and (b) establish procedures to identify the type of transfer or acquisition of an employing enterprise; and (8) a person who knowingly violates or attempts to violate a rule adopted pursuant to Paragraph (7) underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 563 - of this subsection, who transfers or acquires, or attempts to transfer or acquire, an employing enterprise for the sole or primary purpose of obtaining a reduced liability for contributions or who knowingly advises another person to violate a rule adopted pursuant to Paragraph (7) of this subsection or to transfer or acquire an employing enterprise for the sole or primary purpose of obtaining a reduced liability for contributions is guilty of a misdemeanor and shall be punished by a fine of not less than one thousand five hundred dollars ($1,500) or more than three thousand dollars ($3,000) or, if an individual, by imprisonment for a definite term not to exceed ninety days or both. In addition, such a person shall be subject to the following civil penalty imposed by the secretary: (a) if the person is an employer, the person shall be assigned the highest contribution rate established by the provisions of this section for the calendar year in which the violation occurs and the three subsequent calendar years; provided that, if the difference between the increased penalty rate and the rate otherwise applicable would be less than two percent of the employer's payroll, the contribution rate shall be increased by two percent of the employer's payroll for the calendar year in which the violation occurs and the three subsequent calendar years; or (b) if the person is not an employer, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 564 - the secretary may impose a civil penalty not to exceed three thousand dollars ($3,000). I. For each calendar year, if, as of the computation date for that year, an employer's account has been chargeable with benefits throughout the preceding thirty-six months, the contribution rate for that employer shall be determined as follows: (1) the total assets in the fund and the total of the last annual payrolls of all employers subject to contributions as of the computation date for each year shall be determined. These annual totals are here called "the fund" and "total payrolls". For each year, the "reserve" of each employer shall be fixed by the excess of the employer's total contributions over total benefit charges computed as a percentage of the employer's average payroll reported for contributions. The determination of each employer's annual rate, computed as of the computation date for each calendar year, shall be made by matching the employer's reserve as shown in the reserve column with the corresponding rate in the rate column of the applicable rate schedule of the table provided in Paragraph (4) or (5) of this subsection; (2) for each calendar year after 2010, except as otherwise provided, each employer's rate shall be the corresponding rate in: (a) Contribution Schedule 0 of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 565 - table provided in Paragraph (4) of this subsection if the fund equals at least two and three-tenths percent of the total payrolls; (b) Contribution Schedule 1 of the table provided in Paragraph (4) of this subsection if the fund equals less than two and three-tenths percent but not less than one and seven-tenths percent of the total payrolls; (c) Contribution Schedule 2 of the table provided in Paragraph (4) of this subsection if the fund equals less than one and seven-tenths percent but not less than one and three-tenths percent of the total payrolls; (d) Contribution Schedule 3 of the table provided in Paragraph (4) of this subsection if the fund equals less than one and three-tenths percent but not less than one percent of the total payrolls; (e) Contribution Schedule 4 of the table provided in Paragraph (4) of this subsection if the fund equals less than one percent but not less than seven-tenths percent of the total payrolls; (f) Contribution Schedule 5 of the table provided in Paragraph (4) of this subsection if the fund equals less than seven-tenths percent but not less than three- tenths percent of the total payrolls; or (g) Contribution Schedule 6 of the table provided in Paragraph (4) of this subsection if the fund underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 566 - equals less than three-tenths percent of the total payrolls; (3) as used in this section: (a) "annual payroll" means the total amount of remuneration from an employer for employment during a twelve-month period ending on a computation date, and "average payroll" means the average of the last three annual payrolls; (b) "base-period wages" means the wages of an individual for insured work during the individual's base period on the basis of which the individual's benefit rights were determined; (c) "base-period employers" means the employers of an individual during the individual's base period; and (d) "computation date" for each calendar year means the close of business on June 30 of the preceding calendar year; (4) table of employer reserves and contribution rate schedules: Employer Contribution Contribution Contribution Contribution Reserve Schedule 0 Schedule 1 Schedule 2 Schedule 3 10.0% and over 0.03% 0.05% 0.1% 0.6% 9.0%-9.9% 0.06% 0.1% 0.2% 0.9% 8.0%-8.9% 0.09% 0.2% 0.4% 1.2% 7.0%-7.9% 0.10% 0.4% 0.6% 1.5% underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 567 - 6.0%-6.9% 0.30% 0.6% 0.8% 1.8% 5.0%-5.9% 0.50% 0.8% 1.1% 2.1% 4.0%-4.9% 0.80% 1.1% 1.4% 2.4% 3.0%-3.9% 1.20% 1.4% 1.7% 2.7% 2.0%-2.9% 1.50% 1.7% 2.0% 3.0% 1.0%-1.9% 1.80% 2.0% 2.4% 3.3% 0.9%-0.0% 2.40% 2.4% 3.3% 3.6% (-0.1%)-(-0.5%) 3.30% 3.3% 3.6% 3.9% (-0.5%)-(-1.0%) 4.20% 4.2% 4.2% 4.2% (-1.0%)-(-2.0%) 5.00% 5.0% 5.0% 5.0% Under (-2.0%) 5.40% 5.4% 5.4% 5.4% Employer Contribution Contribution Contribution Reserve Schedule 4 Schedule 5 Schedule 6 10.0% and over 0.9% 1.2% 2.7% 9.0%-9.9% 1.2% 1.5% 2.7% 8.0%-8.9% 1.5% 1.8% 2.7% 7.0%-7.9% 1.8% 2.1% 2.7% 6.0%-6.9% 2.1% 2.4% 2.7% 5.0%-5.9% 2.4% 2.7% 3.0% 4.0%-4.9% 2.7% 3.0% 3.3% 3.0%-3.9% 3.0% 3.3% 3.6% 2.0%-2.9% 3.3% 3.6% 3.9% 1.0%-1.9% 3.6% 3.9% 4.2% 0.9%-0.0% 3.9% 4.2% 4.5% (-0.1%)-(-0.5%) 4.2% 4.5% 4.8% underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 568 - (-0.5%)-(-1.0%) 4.5% 4.8% 5.1% (-1.0%)-(-2.0%) 5.0% 5.1% 5.3% Under (-2.0%) 5.4% 5.4% 5.4%; and (5) from July 1, 2007 through December 31, 2010, each employer making contributions pursuant to this subsection shall make a contribution at the rate specified in Contribution Schedule A and a contribution at the rate specified in Contribution Schedule B for the employer's reserve for each of the following periods. Contributions made pursuant to Contribution Schedule A shall be deposited in the unemployment compensation fund and contributions made pursuant to Contribution Schedule B shall be deposited in the state unemployment trust fund: (a) for the period July 1, 2007 through December 31, 2008: Employer Contribution Contribution Reserve Schedule A Schedule B 10.0% and over 0.015% 0.015% 9.0%-9.9% 0.03% 0.03% 8.0%-8.9% 0.045% 0.045% 7.0%-7.9% 0.05% 0.05% 6.0%-6.9% 0.15% 0.15% 5.0%-5.9% 0.25% 0.25% 4.0%-4.9% 0.4% 0.4% 3.0%-3.9% 0.6% 0.6% underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 569 - 2.0%-2.9% 0.75% 0.75% 1.0%-1.9% 0.9% 0.9% 0.9%-0.0% 1.2% 1.2% (-0.1%)-(-0.5%) 1.65% 1.65% (-0.5%)-(-1.0%) 2.1% 2.1% (-1.0%)-(-2.0%) 2.5% 2.5% Under (-2.0%) 5.4% 0.0% (b) for the period January 1, 2009 through December 31, 2009: Employer Contribution Contribution Reserve Schedule A Schedule B 10.0% and over 0.018% 0.012% 9.0%-9.9% 0.036% 0.024% 8.0%-8.9% 0.054% 0.036% 7.0%-7.9% 0.06% 0.04% 6.0%-6.9% 0.18% 0.12% 5.0%-5.9% 0.3% 0.2% 4.0%-4.9% 0.48% 0.32% 3.0%-3.9% 0.72% 0.48% 2.0%-2.9% 0.9% 0.6% 1.0%-1.9% 1.08% 0.72% 0.9%-0.0% 1.44% 0.96% (-0.1%)-(-0.5%) 1.98% 1.32% (-0.5%)-(-1.0%) 2.52% 1.68% (-1.0%)-(-2.0%) 3.0% 2.0% underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 570 - Under (-2.0%) 5.4% 0.0% (c) for the period January 1, 2010 through December 31, 2010: Employer Contribution Contribution Reserve Schedule A Schedule B 10.0% and over 0.0195% 0.0105% 9.0%-9.9% 0.039% 0.021% 8.0%-8.9% 0.0585% 0.0315% 7.0%-7.9% 0.065% 0.035% 6.0%-6.9% 0.195% 0.105% 5.0%-5.9% 0.325% 0.175% 4.0%-4.9% 0.52% 0.28% 3.0%-3.9% 0.78% 0.42% 2.0%-2.9% 0.975% 0.525% 1.0%-1.9% 1.17% 0.63% 0.9%-0.0% 1.56% 0.84% (-0.1%)-(-0.5%) 2.145% 1.155% (-0.5%)-(-1.0%) 2.73% 1.47% (-1.0%)-(-2.0%) 3.25% 1.75% Under (-2.0%) 5.4% 0.0%. J. The division shall promptly notify each employer of the employer's rate of contributions as determined for any calendar year pursuant to this section. Such notification shall include the amount determined as the employer's average payroll, the total of all of the employer's underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 571 - contributions paid on the employer's behalf and credited to the employer's account for all past years and total benefits charged to the employer's account for all such years. Such determination shall become conclusive and binding upon the employer unless, within thirty days after the mailing of notice thereof to the employer's last known address or in the absence of mailing, within thirty days after the delivery of such notice, the employer files an application for review and redetermination, setting forth the employer's reason therefor. The employer shall be granted an opportunity for a fair hearing in accordance with rules prescribed by the secretary, but an employer shall not have standing, in any proceeding involving the employer's rate of contributions or contribution liability, to contest the chargeability to the employer's account of any benefits paid in accordance with a determination, redetermination or decision pursuant to Section 51-1-8 NMSA 1978, except upon the ground that the services on the basis of which such benefits were found to be chargeable did not constitute services performed in employment for the employer and only in the event that the employer was not a party to such determination, redetermination or decision, or to any other proceedings under the Unemployment Compensation Law in which the character of such services was determined. The employer shall be promptly notified of the decision on the employer's application for redetermination, which shall become underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 572 - final unless, within fifteen days after the mailing of notice thereof to the employer's last known address or in the absence of mailing, within fifteen days after the delivery of such notice, further appeal is initiated pursuant to Subsection D of Section 51-1-8 NMSA 1978. K. The division shall provide each contributing employer, within ninety days of the end of each calendar quarter, a written determination of benefits chargeable to the employer's account. Such determination shall become conclusive and binding upon the employer for all purposes unless, within thirty days after the mailing of the determination to the employer's last known address or in the absence of mailing, within thirty days after the delivery of such determination, the employer files an application for review and redetermination, setting forth the employer's reason therefor. The employer shall be granted an opportunity for a fair hearing in accordance with rules prescribed by the secretary, but an employer shall not have standing in any proceeding involving the employer's contribution liability to contest the chargeability to the employer's account of any benefits paid in accordance with a determination, redetermination or decision pursuant to Section 51-1-8 NMSA 1978, except upon the ground that the services on the basis of which such benefits were found to be chargeable did not constitute services performed in employment for the employer underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 573 - and only in the event that the employer was not a party to such determination, redetermination or decision, or to any other proceedings under the Unemployment Compensation Law in which the character of such services was determined. The employer shall be promptly notified of the decision on the employer's application for redetermination, which shall become final unless, within fifteen days after the mailing of notice thereof to the employer's last known address or in the absence of mailing, within fifteen days after the delivery of such notice, further appeal is initiated pursuant to Subsection D of Section 51-1-8 NMSA 1978. L. The contributions, together with interest and penalties thereon imposed by the Unemployment Compensation Law, shall not be assessed nor shall action to collect the same be commenced more than four years after a report showing the amount of the contributions was due. In the case of a false or fraudulent contribution report with intent to evade contributions or a willful failure to file a report of all contributions due, the contributions, together with interest and penalties thereon, may be assessed or an action to collect such contributions may be begun at any time. Before the expiration of such period of limitation, the employer and the secretary may agree in writing to an extension thereof and the period so agreed on may be extended by subsequent agreements in writing. In any case where the assessment has been made underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 574 - and action to collect has been commenced within four years of the due date of any contribution, interest or penalty, including the filing of a warrant of lien by the secretary pursuant to Section 51-1-36 NMSA 1978, such action shall not be subject to any period of limitation. M. The secretary shall correct any error in the determination of an employer's rate of contribution during the calendar year to which the erroneous rate applies, notwithstanding that notification of the employer's rate of contribution may have been issued and contributions paid pursuant to the notification. Upon issuance by the division of a corrected rate of contribution, the employer shall have the same rights to review and redetermination as provided in Subsection J of this section. N. Any interest required to be paid on advances to this state's unemployment compensation fund under Title 12 of the Social Security Act shall be paid in a timely manner as required under Section 1202 of Title 12 of the Social Security Act and shall not be paid, directly or indirectly, by the state from amounts in the state's unemployment compensation fund." Section 275. Section 51-1-37 NMSA 1978 (being Laws 1936 (S.S.), Chapter 1, Section 15, as amended) is amended to read: "51-1-37. PROTECTION OF RIGHTS AND BENEFITS.-- A. Except as provided by Section 51-1-37.1 NMSA underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 575 - l978, any agreement by an individual to waive, release or commute [his] the individual's rights to benefits or any other rights under the Unemployment Compensation Law shall be void. No agreement by any individual in the employ of any person or concern to pay all or any portion of an employer's contributions or payments in lieu of contributions, required under the Unemployment Compensation Law from such employer, shall be valid. No employer shall directly or indirectly make or require or accept any deduction from the remuneration of individuals in [his] the employer's employ to finance the employer's contributions or payments in lieu of contributions required from [him] the employer or require or accept any waiver of any right hereunder by an individual in [his] the employer's employ. Any employer or officer or agent of an employer who violates any provisions of this subsection shall, for each offense, be fined not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) or be imprisoned for not more than six months, or both. B. No individual claiming benefits shall be charged fees of any kind in any proceeding under the Unemployment Compensation Law by the department or its representatives or by any court or any officer thereof. Any individual claiming benefits and any employer in any proceeding before the secretary, [his] the secretary's authorized representative or the board of review may be underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 576 - represented by counsel or any other duly authorized agent, but no such counsel or agent shall either charge or receive for such services more than an amount approved by the secretary. Any person who violates any provision of this subsection shall, for each such offense, be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500) or imprisoned for not more than six months, or both. C. Except as provided in Subsection D of this section, any assignment, pledge or encumbrance of any right to benefits [which] that are or may become due or payable under the Unemployment Compensation Law shall be void, and such rights to benefits shall be exempt from levy, execution, attachment, garnishment or any other remedy provided for the collection of debt. Benefits received by any individual, so long as they are not mingled with other funds of the recipient, shall be exempt from a remedy for the collection of debts except debts incurred for necessaries furnished to an individual or [his] the individual's spouse, domestic partner or dependents during the time when [he] the individual was unemployed. Any waiver of any exemption provided for in this subsection is void. D. The following actions for collection of the indicated obligations may be taken: (1) deduction and witholding of amounts of unpaid child support pursuant to Section 51-1-37.1 NMSA 1978; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 577 - (2) levy by the federal internal revenue service pursuant to Section 6331(h)(2)(C) of the Internal Revenue Code of 1986; provided that arrangements have been made by the internal revenue service for reimbursement of the division for administrative costs incurred by the division that are attributable to the repayment of uncollected federal internal revenue taxes. Levy of federal income taxes will be made in accordance with such regulations as the secretary may prescribe; and (3) deduction and withholding of amounts for food stamp overissuances pursuant to Section 51-1-37.2 NMSA 1978." Section 276. Section 51-1-42 NMSA 1978 (being Laws 2003, Chapter 47, Section 12, as amended) is amended to read: "51-1-42. DEFINITIONS.--As used in the Unemployment Compensation Law: A. "base period" means the first four of the last five completed calendar quarters immediately preceding the first day of an individual's benefit year, except that "base period" means for benefit years beginning on or after January 1, 2005 for an individual who does not have sufficient wages in the base period as defined to qualify for benefits pursuant to Section 51-1-5 NMSA 1978, the individual's base period shall be the last four completed calendar quarters immediately preceding the first day of the individual's benefit year if underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 578 - that period qualifies the individual for benefits pursuant to Section 51-1-5 NMSA 1978; provided that: (1) wages that fall within the base period of claims established pursuant to this subsection are not available for reuse in qualifying for a subsequent benefit year; and (2) in the case of a combined-wage claim pursuant to the arrangement approved by the federal secretary of labor, the base period is that base period applicable under the unemployment compensation law of the paying state; B. "benefits" means the cash unemployment compensation payments payable to an eligible individual pursuant to Section 51-1-4 NMSA 1978 with respect to the individual's weeks of unemployment; C. "contributions" means the money payments required by Section 51-1-9 NMSA 1978 to be made into the fund by an employer on account of having individuals performing services for the employer; D. "employing unit" means any individual or type of organization, including any partnership, association, cooperative, trust, estate, joint-stock company, agricultural enterprise, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, household, fraternity or club, the legal representative of a deceased person or any state or local underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 579 - government entity to the extent required by law to be covered as an employer, [which] that has in its employ one or more individuals performing services for it within this state. An individual performing services for an employing unit that maintains two or more separate establishments within this state shall be deemed to be employed by a single employing unit for all the purposes of the Unemployment Compensation Law. An individual performing services for a contractor, subcontractor or agent that is performing work or services for an employing unit, as described in this subsection, [which is] that are within the scope of the employing unit's usual trade, occupation, profession or business, shall be deemed to be in the employ of the employing unit for all purposes of the Unemployment Compensation Law unless the contractor, subcontractor or agent is itself an employer within the provisions of Subsection E of this section; E. "employer" includes: (1) an employing unit that: (a) unless otherwise provided in this section, paid for service in employment as defined in Subsection F of this section wages of four hundred fifty dollars ($450) or more in any calendar quarter in either the current or preceding calendar year or had in employment, as defined in Subsection F of this section, for some portion of a day in each of twenty different calendar weeks during either underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 580 - the current or the preceding calendar year, and irrespective of whether the same individual was in employment in each such day, at least one individual; (b) for the purposes of Subparagraph (a) of this paragraph, if any week includes both December 31 and January 1, the days of that week up to January 1 shall be deemed one calendar week and the days beginning January 1, another such week; and (c) for purposes of defining an "employer" under Subparagraph (a) of this paragraph, the wages or remuneration paid to individuals performing services in employment in agricultural labor or domestic services as provided in Paragraphs (6) and (7) of Subsection F of this section shall not be taken into account; except that any employing unit determined to be an employer of agricultural labor under Paragraph (6) of Subsection F of this section shall be an employer under Subparagraph (a) of this paragraph so long as the employing unit is paying wages or remuneration for services other than agricultural services; (2) any individual or type of organization that acquired the trade or business or substantially all of the assets thereof, of an employing unit that at the time of the acquisition was an employer subject to the Unemployment Compensation Law; provided that where such an acquisition takes place, the secretary may postpone activating the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 581 - separate account pursuant to Subsection A of Section 51-1-11 NMSA 1978 until such time as the successor employer has employment as defined in Subsection F of this section; (3) an employing unit that acquired all or part of the organization, trade, business or assets of another employing unit and that, if treated as a single unit with the other employing unit or part thereof, would be an employer under Paragraph (1) of this subsection; (4) an employing unit not an employer by reason of any other paragraph of this subsection: (a) for which, within either the current or preceding calendar year, service is or was performed with respect to which such employing unit is liable for any federal tax against which credit may be taken for contributions required to be paid into a state unemployment fund; or (b) that, as a condition for approval of the Unemployment Compensation Law for full tax credit against the tax imposed by the Federal Unemployment Tax Act, is required, pursuant to that act, to be an "employer" under the Unemployment Compensation Law; (5) an employing unit that, having become an employer under Paragraph (1), (2), (3) or (4) of this subsection, has not, under Section 51-1-18 NMSA 1978, ceased to be an employer subject to the Unemployment Compensation underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 582 - Law; (6) for the effective period of its election pursuant to Section 51-1-18 NMSA 1978, any other employing unit that has elected to become fully subject to the Unemployment Compensation Law; (7) an employing unit for which any services performed in its employ are deemed to be performed in this state pursuant to an election under an arrangement entered into in accordance with Subsection A of Section 51-1-50 NMSA 1978; and (8) an Indian tribe as defined in 26 USCA Section 3306(u) for which service in employment is performed; F. "employment": (1) means any service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied; (2) means an individual's entire service, performed within or both within and without this state if: (a) the service is primarily localized in this state with services performed outside the state being only incidental thereto; or (b) the service is not localized in any state but some of the service is performed in this state and: 1) the base of operations or, if there is no base of operations, the place from which such service is directed or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 583 - controlled, is in this state; or 2) the base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed but the individual's residence is in this state; (3) means services performed within this state but not covered under Paragraph (2) of this subsection if contributions or payments in lieu of contributions are not required and paid with respect to such services under an unemployment compensation law of any other state, the federal government or Canada; (4) means services covered by an election pursuant to Section 51-1-18 NMSA 1978 and services covered by an election duly approved by the secretary in accordance with an arrangement pursuant to Paragraph (1) of Subsection A of Section 51-1-50 NMSA 1978 shall be deemed to be employment during the effective period of the election; (5) means services performed by an individual for an employer for wages or other remuneration unless and until it is established by a preponderance of evidence that: (a) the individual has been and will continue to be free from control or direction over the performance of the services both under the individual's contract of service and in fact; (b) the service is either outside the usual course of business for which the service is performed or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 584 - that such service is performed outside of all the places of business of the enterprise for which such service is performed; and (c) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the contract of service; (6) means service performed after December 31, 1977 by an individual in agricultural labor as defined in Subsection Q of this section if: (a) the service is performed for an employing unit that: 1) paid remuneration in cash of twenty thousand dollars ($20,000) or more to individuals in that employment during any calendar quarter in either the current or the preceding calendar year; or 2) employed in agricultural labor ten or more individuals for some portion of a day in each of twenty different calendar weeks in either the current or preceding calendar year, whether or not the weeks were consecutive, and regardless of whether the individuals were employed at the same time; (b) the service is not performed before January 1, 1980 by an individual who is an alien admitted to the United States to perform service in agricultural labor pursuant to Sections 214(c) and 101(15)(H) of the federal Immigration and Nationality Act; and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 585 - (c) for purposes of this paragraph, an individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for a farm operator or other person shall be treated as an employee of the crew leader: 1) if the crew leader meets the requirements of a crew leader as defined in Subsection L of this section; or 2) substantially all the members of the crew operate or maintain mechanized agricultural equipment that is provided by the crew leader; and 3) the individuals performing the services are not, by written agreement or in fact, within the meaning of Paragraph (5) of this subsection, performing services in employment for the farm operator or other person; (7) means service performed after December 31, 1977 by an individual in domestic service in a private home, local college club or local chapter of a college fraternity or sorority for a person or organization that paid cash remuneration of one thousand dollars ($1,000) in any calendar quarter in the current or preceding calendar year to individuals performing such services; (8) means service performed after December 31, 1971 by an individual in the employ of a religious, charitable, educational or other organization but only if the following conditions are met: (a) the service is excluded from "employment" as defined in the Federal Unemployment Tax Act underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 586 - solely by reason of Section 3306(c)(8) of that act; and (b) the organization meets the requirements of "employer" as provided in Subparagraph (a) of Paragraph (1) of Subsection E of this section; (9) means service of an individual who is a citizen of the United States, performed outside the United States, except in Canada, after December 31, 1971 in the employ of an American employer, other than service that is deemed "employment" under the provisions of Paragraph (2) of this subsection or the parallel provisions of another state's law, if: (a) the employer's principal place of business in the United States is located in this state; (b) the employer has no place of business in the United States, but: 1) the employer is an individual who is a resident of this state; 2) the employer is a corporation organized under the laws of this state; or 3) the employer is a partnership or a trust and the number of the partners or trustees who are residents of this state is greater than the number who are residents of any one other state; or (c) none of the criteria of Subparagraphs (a) and (b) of this paragraph are met, but the employer has elected coverage in this state or, the employer having failed to elect coverage in any state, the individual underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 587 - has filed a claim for benefits, based on such service, under the law of this state. "American employer" for the purposes of this paragraph means a person who is: 1) an individual who is a resident of the United States; 2) a partnership if two-thirds or more of the partners are residents of the United States; 3) a trust if all of the trustees are residents of the United States; or 4) a corporation organized under the laws of the United States or of any state. For the purposes of this paragraph, "United States" includes the United States, the District of Columbia, the commonwealth of Puerto Rico and the Virgin Islands; (10) means, notwithstanding any other provisions of this subsection, service with respect to which a tax is required to be paid under any federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund or which as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act is required to be covered under the Unemployment Compensation Law; (11) means service performed in the employ of an Indian tribe if: (a) the service is excluded from "employment" as defined in 26 USCA Section 3306(c) solely by reason of 26 USCA Section 3306(c)(7); and (b) the service is not otherwise underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 588 - excluded from employment pursuant to the Unemployment Compensation Law; (12) does not include: (a) service performed in the employ of: 1) a church or convention or association of churches; or 2) an organization that is operated primarily for religious purposes and that is operated, supervised, controlled or principally supported by a church or convention or association of churches; (b) service performed by a duly ordained, commissioned or licensed minister of a church in the exercise of such ministry or by a member of a religious order in the exercise of duties required by such order; (c) service performed by an individual in the employ of the individual's son, daughter, [or] spouse or domestic partner, and service performed by a child under the age of majority in the employ of the child's father or mother; (d) service performed in the employ of the United States government or an instrumentality of the United States immune under the constitution of the United States from the contributions imposed by the Unemployment Compensation Law except that to the extent that the congress of the United States shall permit states to require any instrumentalities of the United States to make payments into underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 589 - an unemployment fund under a state unemployment compensation act, all of the provisions of the Unemployment Compensation Law shall be applicable to such instrumentalities, and to service performed for such instrumentalities in the same manner, to the same extent and on the same terms as to all other employers, employing units, individuals and services; provided that if this state shall not be certified for any year by the secretary of labor of the United States under Section 3304 of the federal Internal Revenue Code of 1986, 26 U.S.C. Section 3304, the payments required of such instrumentalities with respect to such year shall be refunded by the department from the fund in the same manner and within the same period as is provided in Subsection D of Section 51-1-36 NMSA 1978 with respect to contributions erroneously collected; (e) service performed in a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury or providing remunerative work for individuals who because of their impaired physical or mental capacity cannot be readily absorbed in the competitive labor market, by an individual receiving that rehabilitation or remunerative work; (f) service with respect to which unemployment compensation is payable under an unemployment underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 590 - compensation system established by an act of congress; (g) service performed in the employ of a foreign government, including service as a consular or other officer or employee or a nondiplomatic representative; (h) service performed by an individual for a person as an insurance agent or as an insurance solicitor, if all such service performed by the individual for the person is performed for remuneration solely by way of commission; (i) service performed by an individual under the age of eighteen in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution; (j) service covered by an election duly approved by the agency charged with the administration of any other state or federal unemployment compensation law, in accordance with an arrangement pursuant to Paragraph (1) of Subsection A of Section 51-1-50 NMSA 1978 during the effective period of the election; (k) service performed, as part of an unemployment work-relief or work-training program assisted or financed in whole or part by any federal agency or an agency of a state or political subdivision thereof, by an individual receiving the work relief or work training; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 591 - (l) service performed by an individual who is enrolled at a nonprofit or public educational institution that normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on as a student in a full-time program, taken for credit at the institution that combines academic instruction with work experience, if the service is an integral part of such program and the institution has so certified to the employer, except that this subparagraph shall not apply to service performed in a program established for or on behalf of an employer or group of employers; (m) service performed in the employ of a hospital, if the service is performed by a patient of the hospital, or services performed by an inmate of a custodial or penal institution for any employer; (n) service performed by real estate salespersons for others when the services are performed for remuneration solely by way of commission; (o) service performed in the employ of a school, college or university if the service is performed by a student who is enrolled and is regularly attending classes at the school, college or university; (p) service performed by an individual for a fixed or contract fee officiating at a sporting event underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 592 - that is conducted by or under the auspices of a nonprofit or governmental entity if that person is not otherwise an employee of the entity conducting the sporting event; (q) service performed for a private, for-profit person or entity by an individual as a product demonstrator or product merchandiser if the service is performed pursuant to a written contract between that individual and a person or entity whose principal business is obtaining the services of product demonstrators and product merchandisers for third parties, for demonstration and merchandising purposes and the individual: 1) is compensated for each job or the compensation is based on factors related to the work performed; 2) provides the equipment used to perform the service, unless special equipment is required and provided by the manufacturer through an agency; 3) is responsible for completion of a specific job and for any failure to complete the job; 4) pays all expenses, and the opportunity for profit or loss rests solely with the individual; and 5) is responsible for operating costs, fuel, repairs and motor vehicle insurance. For the purpose of this subparagraph, "product demonstrator" means an individual who, on a temporary, part-time basis, demonstrates or gives away samples of a food or other product as part of an advertising or sales promotion for the product and who is not otherwise employed directly by the manufacturer, distributor or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 593 - retailer, and "product merchandiser" means an individual who, on a temporary, part-time basis builds or resets a product display and who is not otherwise directly employed by the manufacturer, distributor or retailer; or (r) service performed for a private, for-profit person or entity by an individual as a landman if substantially all remuneration paid in cash or otherwise for the performance of the services is directly related to the completion by the individual of the specific tasks contracted for rather than to the number of hours worked by the individual. For the purposes of this subparagraph, "landman" means a land professional who has been engaged primarily in: 1) negotiating for the acquisition or divestiture of mineral rights; 2) negotiating business agreements that provide for the exploration for or development of minerals; 3) determining ownership of minerals through the research of public and private records; and 4) reviewing the status of title, curing title defects and otherwise reducing title risk associated with ownership of minerals; managing rights or obligations derived from ownership of interests and minerals; or utilizing or pooling of interest in minerals; and (13) for the purposes of this subsection, if the services performed during one-half or more of any pay period by an individual for the person employing the individual constitute employment, all the services of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 594 - individual for the period shall be deemed to be employment, but, if the services performed during more than one-half of any such pay period by an individual for the person employing the individual do not constitute employment, then none of the services of the individual for the period shall be deemed to be employment. As used in this paragraph, the term "pay period" means a period, of not more than thirty-one consecutive days, for which a payment of remuneration is ordinarily made to the individual by the person employing the individual. This paragraph shall not be applicable with respect to services performed in a pay period by an individual for the person employing the individual where any of such service is excepted by Subparagraph (f) of Paragraph (12) of this subsection; G. "employment office" means a free public employment office, or branch thereof, operated by this state or maintained as a part of a state-controlled system of public employment offices; H. "fund" means the unemployment compensation fund established by the Unemployment Compensation Law to which all contributions and payments in lieu of contributions required under the Unemployment Compensation Law and from which all benefits provided under the Unemployment Compensation Law shall be paid; provided that, for the purposes of paying contributions, "fund" may also include the state unemployment underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 595 - trust fund and contributions paid to that fund pursuant to Contribution Schedule B in Paragraph (5) of Subsection I of Section 51-1-11 NMSA 1978 and Section 51-1-19.1 NMSA 1978; I. "unemployment" means, with respect to an individual, any week during which the individual performs no services and with respect to which no wages are payable to the individual and during which the individual is not engaged in self-employment or receives an award of back pay for loss of employment. The secretary shall prescribe by rule what constitutes part-time and intermittent employment, partial employment and the conditions under which individuals engaged in such employment are eligible for partial unemployment benefits, but no individual who is otherwise eligible shall be deemed ineligible for benefits solely for the reason that the individual seeks, applies for or accepts only part-time work, instead of full-time work, if the part-time work is for at least twenty hours per week; J. "state", when used in reference to any state other than New Mexico, includes, in addition to the states of the United States, the District of Columbia, the commonwealth of Puerto Rico and the Virgin Islands; K. "unemployment compensation administration fund" means the fund established by Subsection A of Section 51-1-34 NMSA 1978 from which administrative expenses under the Unemployment Compensation Law shall be paid. "Employment underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 596 - security department fund" means the fund established by Subsection B of Section 51-1-34 NMSA 1978 from which certain administrative expenses under the Unemployment Compensation Law shall be paid; L. "crew leader" means a person who: (1) holds a valid certificate of registration as a crew leader or farm labor contractor under the federal Migrant and Seasonal Agricultural Worker Protection Act; (2) furnishes individuals to perform services in agricultural labor for any other person; (3) pays, either on the crew leader's own behalf or on behalf of such other person, the individuals so furnished by the crew leader for service in agricultural labor; and (4) has not entered into a written agreement with the other person for whom the crew leader furnishes individuals in agricultural labor that the individuals will be the employees of the other person; M. "week" means such period of seven consecutive days, as the secretary may by rule prescribe. The secretary may by rule prescribe that a week shall be deemed to be "in", "within" or "during" the benefit year that includes the greater part of such week; N. "calendar quarter" means the period of three consecutive calendar months ending on March 31, June 30, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 597 - September 30 or December 31; O. "insured work" means services performed for employers who are covered under the Unemployment Compensation Law; P. "benefit year" with respect to an individual means the one-year period beginning with the first day of the first week of unemployment with respect to which the individual first files a claim for benefits in accordance with Subsection A of Section 51-1-8 NMSA 1978 and thereafter the one-year period beginning with the first day of the first week of unemployment with respect to which the individual next files such a claim for benefits after the termination of the individual's last preceding benefit year; provided that at the time of filing such a claim the individual has been paid the wage required under Paragraph (5) of Subsection A of Section 51-1-5 NMSA 1978; Q. "agricultural labor" includes all services performed: (1) on a farm, in the employ of a person, in connection with cultivating the soil or in connection with raising or harvesting an agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry and fur-bearing animals and wildlife; (2) in the employ of the owner or tenant or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 598 - other operator of a farm, in connection with the operation, management, conservation or maintenance of the farm and its tools and equipment, if the major part of the service is performed on a farm; (3) in connection with the operation or maintenance of ditches, canals, reservoirs or waterways used exclusively for supplying and storing water for farming purposes when such ditches, canals, reservoirs or waterways are owned and operated by the farmers using the water stored or carried therein; and (4) in handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivery to storage or to market or to a carrier for transportation to market any agricultural or horticultural commodity but only if the service is performed as an incident to ordinary farming operations. The provisions of this paragraph shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption. As used in this subsection, the term "farm" includes stock, dairy, poultry, fruit, fur-bearing animal and truck farms, plantations, ranches, nurseries, greenhouses, ranges and orchards; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 599 - R. "payments in lieu of contributions" means the money payments made into the fund by an employer pursuant to the provisions of Subsection B of Section 51-1-13 NMSA 1978 or Subsection E of Section 51-1-59 NMSA 1978; S. "department" means the [labor] workforce solutions department; and T. "wages" means all remuneration for services, including commissions and bonuses and the cash value of all remuneration in any medium other than cash. The reasonable cash value of remuneration in any medium other than cash shall be established and determined in accordance with rules prescribed by the secretary; provided that the term "wages" shall not include: (1) subsequent to December 31, 1977, that part of the remuneration in excess of the base wage as determined by the secretary for each calendar year. The base wage upon which contribution shall be paid during any calendar year shall be sixty percent of the state's average annual earnings computed by the division by dividing total wages reported to the division by contributing employers for the second preceding calendar year before the calendar year the computed base wage becomes effective by the average annual employment reported by contributing employers for the same period rounded to the next higher multiple of one hundred dollars ($100); provided that the base wage so computed for underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 600 - any calendar year shall not be less than seven thousand dollars ($7,000). Wages paid by an employer to an individual in the employer's employ during any calendar year in excess of the base wage in effect for that calendar year shall be reported to the department but shall be exempt from the payment of contributions unless such wages paid in excess of the base wage become subject to tax under a federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund; (2) the amount of any payment with respect to services performed after June 30, 1941 to or on behalf of an individual in the employ of an employing unit under a plan or system established by the employing unit that makes provision for individuals in its employ generally or for a class or classes of individuals, including any amount paid by an employing unit for insurance or annuities, or into a fund, to provide for any payment, on account of: (a) retirement if the payments are made by an employer to or on behalf of an employee under a simplified employee pension plan that provides for payments by an employer in addition to the salary or other remuneration normally payable to the employee or class of employees and does not include any payments that represent deferred compensation or other reduction of an employee's normal underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 601 - taxable wages or remuneration or any payments made to a third party on behalf of an employee as part of an agreement of deferred remuneration; (b) sickness or accident disability if the payments are received under a workers' compensation or occupational disease disablement law; (c) medical and hospitalization expenses in connection with sickness or accident disability; or (d) death; provided the individual in its employ has not the option to receive, instead of provision for the death benefit, any part of such payment, or, if such death benefit is insured, any part of the premiums or contributions to premiums paid by the individual's employing unit and has not the right under the provisions of the plan or system or policy of insurance providing for the death benefit to assign the benefit, or to receive a cash consideration in lieu of the benefit either upon the individual's withdrawal from the plan or system providing for the benefit or upon termination of the plan or system or policy of insurance or of the individual's service with the employing unit; (3) remuneration for agricultural labor paid in any medium other than cash; (4) a payment made to, or on behalf of, an employee or an employee's beneficiary under a cafeteria plan underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 602 - within the meaning of Section 125 of the federal Internal Revenue Code of 1986; (5) a payment made, or benefit furnished to or for the benefit of an employee if at the time of the payment or such furnishing it is reasonable to believe that the employee will be able to exclude the payment or benefit from income under Section 129 of the federal Internal Revenue Code of 1986; (6) a payment made by an employer to a survivor or the estate of a former employee after the calendar year in which the employee died; (7) a payment made to, or on behalf of, an employee or the employee's beneficiary under an arrangement to which Section 408(p) of the federal Internal Revenue Code of 1986 applies, other than any elective contributions under Paragraph (2)(A)(i) of that section; (8) a payment made to or for the benefit of an employee if at the time of the payment it is reasonable to believe that the employee will be able to exclude the payment from income under Section 106 of the federal Internal Revenue Code of 1986; or (9) the value of any meals or lodging furnished by or on behalf of the employer if at the time the benefit is provided it is reasonable to believe that the employee will be able to exclude such items from income under underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 603 - Section 119 of the federal Internal Revenue Code of 1986." Section 277. Section 52-1-6 NMSA 1978 (being Laws 1990 (2nd S.S.), Chapter 2, Section 4) is amended to read: "52-l-6. APPLICATION OF PROVISIONS OF ACT.-- A. The provisions of the Workers' Compensation Act shall apply to employers of three or more workers; provided that act shall apply to all employers engaged in activities required to be licensed under the provisions of the Construction Industries Licensing Act regardless of the number of employees. The provisions of the Workers' Compensation Act shall not apply to employers of private domestic servants and farm and ranch laborers. B. An election to be subject to the Workers' Compensation Act by employers of private domestic servants or farm and ranch laborers, by persons for whom the services of qualified real estate salespersons are performed or by a partner or self-employed person may be made by filing, in the office of the director, either a sworn statement to the effect that the employer accepts the provisions of the Workers' Compensation Act or an insurance or security undertaking as required by Section 52-l-4 NMSA l978. C. Every worker shall be conclusively presumed to have accepted the provisions of the Workers' Compensation Act if [his] the worker's employer is subject to the provisions of that act and has complied with its requirements, including underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 604 - insurance. D. [Such] Compliance with the provisions of the Workers' Compensation Act, including the provisions for insurance, shall be [and construed to be] a surrender by the employer and the worker of their rights to any other method, form or amount of compensation or determination thereof or to any cause of action at law, suit in equity or statutory or common-law right to remedy or proceeding whatever for or on account of personal injuries or death of the worker than as provided in the Workers' Compensation Act and shall be an acceptance of all of the provisions of the Workers' Compensation Act and shall bind the worker [himself] and, for compensation for [his] the worker's death, shall bind [his] the worker's personal representative, [his] the worker's surviving spouse or surviving domestic partner and next of kin, as well as the employer and those conducting [his] the employer's business during bankruptcy or insolvency. E. The Workers' Compensation Act provides exclusive remedies. No cause of action outside the Workers' Compensation Act shall be brought by an employee or dependent against the employer or [his] the employer's representative, including the insurer, guarantor or surety of any employer, for any matter relating to the occurrence of or payment for any injury or death covered by the Workers' Compensation Act. Nothing in the Workers' Compensation Act, however, shall underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 605 - affect [or be construed to affect] in any way, the existence of or the mode of trial of any claim or cause of action that the worker has against any person other than [his] the worker's employer or another employee of [his] the worker's employer, including a management or supervisory employee, or the insurer, guarantor or surety of [his] the worker's employer." Section 278. Section 52-1-17 NMSA 1978 (being Laws 1965, Chapter 295, Section 10, as amended) is amended to read: "52-1-17. DEPENDENTS.-- A. As used in the Workers' Compensation Act, unless the context otherwise requires, the following persons, and they only, shall be deemed dependents and entitled to compensation under the provisions of the Workers' Compensation Act: [A.] (1) a child who is under eighteen years of age or incapable of self-support and who is unmarried and not in a domestic partnership or who is under twenty-three years of age if enrolled as a full-time student in any accredited educational institution; [B.] (2) the widow, [or] widower or surviving domestic partner of the deceased, only if living with the deceased at the time of [his] the deceased's death or legally entitled to be supported by [him] the deceased, including a divorced spouse entitled to alimony or a former domestic underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 606 - partner entitled to domestic partner support; [C.] (3) a parent or grandparent, only if actually dependent, wholly or partially, upon the deceased; and [D.] (4) a grandchild, brother or sister, only if under eighteen years of age or incapable of self-support and wholly dependent upon the deceased. B. The relation of dependency must exist at the time of the injury. [E.] C. Questions as to [who] which persons constitute dependents and the extent of their dependency shall be determined as of the date of the injury, and [their] the right to any death benefit shall cease upon the happening of any one of the following [contigencies] contingencies: (1) upon the marriage or entry into a domestic partnership of the widow, [or] widower or domestic partner of the deceased; (2) upon a child, grandchild, brother or sister reaching the age of eighteen years, unless the child, grandchild, brother or sister at such time is physically or mentally incapacitated from earnings, or upon a dependent child, grandchild, brother or sister becoming self-supporting prior to attaining that age or if a child, grandchild, brother or sister over eighteen years of age who is enrolled as a full-time student in any accredited educational institution underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 607 - ceases to be so enrolled or reaches the age of twenty-three. A child, grandchild, brother or sister who originally qualified as a dependent by virtue of being less than eighteen years of age may, upon reaching age eighteen, continue to qualify if physically or mentally incapable of self-support, actually dependent or enrolled in an educational institution; or (3) upon the death of any dependent." Section 279. Section 52-3-5 NMSA 1978 (being Laws 1945, Chapter 135, Section 5, as amended) is amended to read: "52-3-5. ACCEPTANCE.-- A. All employers of employees, subject to the provisions of the New Mexico Occupational Disease Disablement Law, shall be conclusively presumed to have accepted the provisions of the New Mexico Occupational Disease Disablement Law. B. Election on the part of the employer or of an employer of private domestic servants or of an employer of ranching or agricultural laborers or of a person for whom the services of a qualified real estate salesperson are performed exempt from the New Mexico Occupational Disease Disablement Law under the provisions of Section 52-3-2 NMSA l978 and partners or self-employed persons to be subject to the New Mexico Occupational Disease Disablement Law may be made by filing in the office of the superintendent of insurance a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 608 - written statement to the effect that [he] the person accepts the provisions of the New Mexico Occupational Disease Disablement Law or an insurance or security undertaking as required by Section 52-3-9 NMSA l978. C. Every employee shall be conclusively presumed to have accepted the provisions of the New Mexico Occupational Disease Disablement Law if [his] the employee's employer is subject to its provisions and has complied with its requirements, including insurance. D. [Such] Compliance with the provisions of the New Mexico Occupational Disease Disablement Law, including the provisions for insurance, shall be construed to be a surrender by the employer and the employee of their rights to any other method, form or amount of compensation or determination thereof or to any cause of action, action at law, suit in equity or statutory or common-law right or remedy or proceeding whatever for or on account of [such] disablement, or death of [such] the employee resulting therefrom, than as provided in the New Mexico Occupational Disease Disablement Law and shall bind the employee [himself] and, for compensation for [his] the employee's death, shall bind [his] the employee's personal representative, [his] surviving spouse or surviving domestic partner and next of kin, as well as the employer and those conducting [his] the employer's business during bankruptcy or insolvency." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 609 - Section 280. Section 52-3-13 NMSA 1978 (being Laws 1945, Chapter 135, Section 13, as amended) is amended to read: "52-3-13. DEPENDENTS DEFINED--DETERMINATION OF.-- A. The following persons, and they only, shall be deemed dependents and entitled to compensation under the provisions of the New Mexico Occupational Disease Disablement Law: (1) a child who is under eighteen years of age or incapable of self-support and who is unmarried and not in a domestic partnership or who is under twenty-three years of age if enrolled as a full-time student in any accredited educational institution; (2) the widow, [or] widower or domestic partner of the deceased, only if living with the deceased at the time of [his] the deceased's death or legally entitled to be supported by [him] the deceased, including a divorced spouse entitled to alimony or a former domestic partner entitled to domestic partner support; (3) a parent or grandparent only if actually dependent, wholly or partially, upon the deceased; and (4) a grandchild, brother or sister only if under eighteen years of age or incapable of self-support and wholly dependent upon the deceased. B. The relation of dependency must exist at the time of the disablement. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 610 - [(5)] C. Questions as to who constitute dependents and the extent of their dependency shall be determined as of the date of the disablement, and their right to any death benefits shall cease upon the happening of any one of the following contingencies: [(a)] (1) upon the marriage or entry into a domestic partnership of the widow, [or] widower or domestic partner of the deceased; [(b)] (2) upon a child, grandchild, brother or sister reaching the age of eighteen years, unless at such time [said] the child, grandchild, brother or sister is physically or mentally incapacitated from earnings, or upon a dependent child, grandchild, brother or sister becoming self-supporting prior to attaining said age, or, if a child, grandchild, brother or sister over eighteen who is enrolled as a full-time student in any accredited educational institution ceases to be so enrolled or reaches the age of twenty-three. A child, grandchild, brother or sister who originally qualified as a dependent by virtue of being less than eighteen years of age may, upon reaching age eighteen, continue to qualify if physically or mentally incapable of self-support and actually dependent or enrolled in an educational institution; or [(c)] (3) upon the death of any dependent. [B.] D. As used in this section, the term "child" includes step-children, adopted children, posthumous children, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 611 - wholly dependent grandchildren and acknowledged illegitimate children but does not include married children or children in domestic partnerships unless dependent. The words "adopted" and "adoption" as used in the New Mexico Occupational Disease Disablement Law shall include cases where persons are treated as adopted as well as those of legal adoption." Section 281. Section 55-9-102 NMSA 1978 (being Laws 2001, Chapter 139, Section 2, as amended) is amended to read: "55-9-102. DEFINITIONS AND INDEX OF DEFINITIONS.-- (a) In Chapter 55, Article 9 NMSA 1978: (1) "accession" means goods that are physically united with other goods in such a manner that the identity of the original goods is not lost; (2) "account", except as used in "account for": (A) means a right to payment of a monetary obligation, whether or not earned by performance: (i) for property that has been or is to be sold, leased, licensed, assigned or otherwise disposed of; (ii) for services rendered or to be rendered; (iii) for a policy of insurance issued or to be issued; (iv) for a secondary obligation incurred or to be incurred; (v) for energy provided or to be underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 612 - provided; (vi) for the use or hire of a vessel under a charter or other contract; (vii) arising out of the use of a credit or charge card or information contained on or for use with the card; or (viii) as winnings in a lottery or other game of chance operated or sponsored by a state, governmental unit of a state or person licensed or authorized to operate the game by a state or governmental unit of a state; and (B) includes health-care-insurance receivables; but (C) does not include: (i) rights to payment evidenced by chattel paper or an instrument; (ii) commercial tort claims; (iii) deposit accounts; (iv) investment property; (v) letter-of-credit rights or letters of credit; or (vi) rights to payment for money or funds advanced or sold, other than rights arising out of the use of a credit or charge card or information contained on or for use with the card; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 613 - (3) "account debtor" means a person obligated on an account, chattel paper or general intangible. The term does not include persons obligated to pay a negotiable instrument, even if the instrument constitutes part of chattel paper; (4) "accounting", except as used in "accounting for", means a record: (A) authenticated by a secured party; (B) indicating the aggregate unpaid secured obligations as of a date not more than thirty-five days earlier or thirty-five days later than the date of the record; and (C) identifying the components of the obligations in reasonable detail; (5) "agricultural lien" means an interest in farm products: (A) that secures payment or performance of an obligation for: (i) goods or services furnished in connection with a debtor's farming operation; or (ii) rent on real property leased by a debtor in connection with its farming operation; (B) that is created by statute in favor of a person that: (i) in the ordinary course of its underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 614 - business furnished goods or services to a debtor in connection with a debtor's farming operation; or (ii) leased real property to a debtor in connection with the debtor's farming operation; and (C) whose effectiveness does not depend on the person's possession of the personal property; (6) "as-extracted collateral" means: (A) oil, gas or other minerals that are subject to a security interest that: (i) is created by a debtor having an interest in the minerals before extraction; and (ii) attaches to the minerals as extracted; or (B) accounts arising out of the sale at the wellhead or minehead of oil, gas or other minerals in which the debtor had an interest before extraction; (7) "authenticate" means to: (A) sign; or (B) execute or otherwise adopt a symbol, or encrypt or similarly process a record in whole or in part, with the present intent of the authenticating person to identify the person and adopt or accept a record; (8) "bank" means an organization that is engaged in the business of banking and includes savings banks, savings and loan associations, credit unions and trust companies; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 615 - (9) "cash proceeds" means proceeds that are money, checks, deposit accounts or the like; (10) "certificate of title" means a certificate of title with respect to which a statute provides for the security interest in question to be indicated on the certificate as a condition or result of the security interest's obtaining priority over the rights of a lien creditor with respect to the collateral; (11) "chattel paper" means a record or records that evidence both a monetary obligation and a security interest in specific goods, a security interest in specific goods and software used in the goods, a security interest in specific goods and license of software used in the goods, a lease of specific goods or a lease of specific goods and license of software used in the goods. In this paragraph, "monetary obligation" means a monetary obligation secured by the goods or owed under a lease of the goods and includes a monetary obligation with respect to software used in the goods. The term does not include: (A) charters or other contracts involving the use or hire of a vessel; or (B) records that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card. If a transaction is evidenced by records that include an instrument underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 616 - or series of instruments, the group of records taken together constitutes chattel paper; (12) "collateral" means the property subject to a security interest or agricultural lien and includes: (A) proceeds to which a security interest attaches; (B) accounts, chattel paper, payment intangibles and promissory notes that have been sold; and (C) goods that are the subject of a consignment; (13) "commercial tort claim" means a claim arising in tort with respect to which: (A) the claimant is an organization; or (B) the claimant is an individual and the claim: (i) arose in the course of the claimant's business or profession; and (ii) does not include damages arising out of personal injury to or the death of an individual; (14) "commodity account" means an account maintained by a commodity intermediary in which a commodity contract is carried for a commodity customer; (15) "commodity contract" means a commodity futures contract, an option on a commodity futures contract, a commodity option or another contract if the contract or option underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 617 - is: (A) traded on or subject to the rules of a board of trade that has been designated as a contract market for such a contract pursuant to federal commodities laws; or (B) traded on a foreign commodity board of trade, exchange or market, and is carried on the books of a commodity intermediary for a commodity customer; (16) "commodity customer" means a person for which a commodity intermediary carries a commodity contract on its books; (17) "commodity intermediary" means a person that: (A) is registered as a futures commission merchant under federal commodities law; or (B) in the ordinary course of its business provides clearance or settlement services for a board of trade that has been designated as a contract market pursuant to federal commodities law; (18) "communicate" means: (A) to send a written or other tangible record; (B) to transmit a record by any means agreed upon by the persons sending and receiving the record; or (C) in the case of transmission of a record underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 618 - to or by a filing office, to transmit a record by any means prescribed by filing-office rule; (19) "consignee" means a merchant to which goods are delivered in a consignment; (20) "consignment" means a transaction, regardless of its form, in which a person delivers goods to a merchant for the purpose of sale and: (A) the merchant: (i) deals in goods of that kind under a name other than the name of the person making delivery; (ii) is not an auctioneer; and (iii) is not generally known by its creditors to be substantially engaged in selling the goods of others; (B) with respect to each delivery, the aggregate value of the goods is one thousand dollars ($1,000) or more at the time of delivery; (C) the goods are not consumer goods immediately before delivery; and (D) the transaction does not create a security interest that secures an obligation; (21) "consignor" means a person that delivers goods to a consignee in a consignment; (22) "consumer debtor" means a debtor in a consumer transaction; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 619 - (23) "consumer goods" means goods that are used or bought for use primarily for personal, family or household purposes; (24) "consumer-goods transaction" means a consumer transaction in which: (A) an individual incurs an obligation primarily for personal, family or household purposes; and (B) a security interest in consumer goods secures the obligation; (25) "consumer obligor" means an obligor who is an individual and who incurred the obligation as part of a transaction entered into primarily for personal, family or household purposes; (26) "consumer transaction" means a transaction in which: (A) an individual incurs an obligation primarily for personal, family or household purposes; (B) a security interest secures the obligation; and (C) the collateral is held or acquired primarily for personal, family or household purposes. The term includes consumer-goods transactions; (27) "continuation statement" means an amendment of a financing statement that: (A) identifies, by its file number, the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 620 - initial financing statement to which it relates; and (B) indicates that it is a continuation statement for, or that it is filed to continue the effectiveness of, the identified financing statement; (28) "debtor" means: (A) a person having an interest, other than a security interest or other lien, in the collateral, whether or not the person is an obligor; (B) a seller of accounts, chattel paper, payment intangibles or promissory notes; or (C) a consignee; (29) "deposit account" means a demand, time, savings, passbook or similar account maintained with a bank. The term does not include investment property or accounts evidenced by an instrument; (30) "document" means a document of title or a receipt of the type described in Subsection (b) of Section 55-7-201 NMSA 1978; (31) "electronic chattel paper" means chattel paper evidenced by a record or records consisting of information stored in an electronic medium; (32) "encumbrance" means a right, other than an ownership interest, in real property. The term includes mortgages and other liens on real property; (33) "equipment" means goods other than underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 621 - inventory, farm products or consumer goods; (34) "farm products" means goods, other than standing timber, with respect to which the debtor is engaged in a farming operation and that are: (A) crops grown, growing or to be grown, including: (i) crops produced on trees, vines and bushes; and (ii) aquatic goods produced in aquacultural operations; (B) livestock, born or unborn, including aquatic goods produced in aquacultural operations; (C) supplies used or produced in a farming operation; or (D) products of crops or livestock in their unmanufactured states; (35) "farming operation" means raising, cultivating, propagating, fattening, grazing or any other farming, livestock or aquacultural operation; (36) "file number" means the number assigned to an initial financing statement pursuant to Subsection (a) of Section 55-9-519 NMSA 1978; (37) "filing office" means an office designated in Section 55-9-501 NMSA 1978 as the place to file a financing statement; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 622 - (38) "filing-office rule" means a rule adopted pursuant to Section 55-9-526 NMSA 1978; (39) "financing statement" means a record or records composed of an initial financing statement and any filed record relating to the initial financing statement; (40) "fixture filing" means the filing of a financing statement covering goods that are or are to become fixtures and satisfying Subsections (a) and (b) of Section 55-9-502 NMSA 1978. The term includes the filing of a financing statement covering goods of a transmitting utility that are or are to become fixtures; (41) "fixtures" means goods that have become so related to particular real property that an interest in them arises under real property law; (42) "general intangible" means any personal property, including things in action, other than accounts, chattel paper, commercial tort claims, deposit accounts, documents, goods, instruments, investment property, letter-of- credit rights, letters of credit, money and oil, gas or other minerals before extraction. The term includes payment intangibles and software; (43) [Reserved]; (44) "goods" means all things that are movable when a security interest attaches and: (A) includes: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 623 - (i) fixtures; (ii) standing timber that is to be cut and removed under a conveyance or contract for sale; (iii) the unborn young of animals; (iv) crops grown, growing or to be grown, even if the crops are produced on trees, vines or bushes; (v) manufactured homes; and (vi) a computer program embedded in goods and any supporting information provided in connection with a transaction relating to the program if the program is associated with the goods in such a manner that it customarily is considered part of the goods, or by becoming the owner of the goods, a person acquires a right to use the program in connection with the goods; but (B) does not include: (i) a computer program embedded in goods that consist solely of the medium in which the program is embedded; or (ii) accounts, chattel paper, commercial tort claims, deposit accounts, documents, general intangibles, instruments, investment property, letter-of- credit rights, letters of credit, money or oil, gas or other minerals before extraction; (45) "governmental unit" means a subdivision, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 624 - agency, department, county, parish, municipality or other unit of the government of the United States, a state or a foreign country. The term includes an organization having a separate corporate existence if the organization is eligible to issue debt on which interest is exempt from income taxation under the laws of the United States; (46) "health-care-insurance receivable" means an interest in or claim under a policy of insurance that is a right to payment of a monetary obligation for health care goods or services provided or to be provided; (47) "instrument" means a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation, is not itself a security agreement or lease and is of a type that in ordinary course of business is transferred by delivery with any necessary indorsement or assignment. The term does not include: (A) investment property; (B) letters of credit; or (C) writings that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card; (48) "inventory" means goods, other than farm products, that: (A) are leased by a person as lessor; (B) are held by a person for sale or lease underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 625 - or to be furnished under a contract of service; (C) are furnished by a person under a contract of service; or (D) consist of raw materials, work in process or materials used or consumed in a business; (49) "investment property" means a security, whether certificated or uncertificated, security entitlement, securities account, commodity contract or commodity account; (50) "jurisdiction of organization", with respect to a registered organization, means the jurisdiction under whose law the organization is organized; (51) "letter-of-credit right" means a right to payment or performance under a letter of credit, whether or not the beneficiary has demanded or is at the time entitled to demand payment or performance. The term does not include the right of a beneficiary to demand payment or performance under a letter of credit; (52) "lien creditor" means: (A) a creditor that has acquired a lien on the property involved by attachment, levy or the like; (B) an assignee for benefit of creditors from the time of assignment; (C) a trustee in bankruptcy from the date of the filing of the petition; or (D) a receiver in equity from the time of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 626 - appointment; (53) "manufactured home" means a structure, transportable in one or more sections, which, in the traveling mode, is eight body feet or more in width or forty body feet or more in length, or, when erected on site, is three hundred twenty or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air- conditioning and electrical systems contained therein. The term includes any structure that meets all of the requirements of this paragraph except the size requirements and with respect to which the manufacturer voluntarily files a certification required by the United States secretary of housing and urban development and complies with the standards established under 42 USCA; (54) "manufactured-home transaction" means a secured transaction: (A) that creates a purchase-money security interest in a manufactured home, other than a manufactured home held as inventory; or (B) in which a manufactured home, other than a manufactured home held as inventory, is the primary collateral; (55) "mortgage" means a consensual interest in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 627 - real property, including fixtures, that secures payment or performance of an obligation; (56) "new debtor" means a person that becomes bound as debtor under Subsection (d) of Section 55-9-203 NMSA 1978 by a security agreement previously entered into by another person; (57) "new value" means: (A) money; (B) money's worth in property, services or new credit; or (C) release by a transferee of an interest in property previously transferred to the transferee. The term does not include an obligation substituted for another obligation; (58) "noncash proceeds" means proceeds other than cash proceeds; (59) "obligor" means a person that, with respect to an obligation secured by a security interest in or an agricultural lien on the collateral: (A) owes payment or other performance of the obligation; (B) has provided property other than the collateral to secure payment or other performance of the obligation; or (C) is otherwise accountable in whole or in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 628 - part for payment or other performance of the obligation. The term does not include issuers or nominated persons under a letter of credit; (60) "original debtor", except as used in Subsection (c) of Section 55-9-310 NMSA 1978, means a person that, as debtor, entered into a security agreement to which a new debtor has become bound under Subsection (d) of Section 55-9-203 NMSA 1978; (61) "payment intangible" means a general intangible under which the account debtor's principal obligation is a monetary obligation; (62) "person related to", with respect to an individual, means: (A) the spouse or domestic partner of the individual; (B) a brother, brother-in-law, sister or sister-in-law of the individual; (C) an ancestor or lineal descendant of the individual or the individual's spouse or domestic partner; or (D) any other relative, by blood, [or] marriage or domestic partnership, of the individual or the individual's spouse or domestic partner who shares the same home with the individual; (63) "person related to", with respect to an organization, means: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 629 - (A) a person directly or indirectly controlling, controlled by or under common control with the organization; (B) an officer or director of, or a person performing similar functions with respect to, the organization; (C) an officer or director of, or a person performing similar functions with respect to, a person described in Subparagraph (A) of this paragraph; (D) the spouse or domestic partner of an individual described in Subparagraph (A), (B) or (C) of this paragraph; or (E) an individual who is related by blood, [or] marriage or domestic partnership to an individual described in Subparagraph (A), (B), (C) or (D) of this paragraph and shares the same home with the individual; (64) "proceeds", except as used in Subsection (b) of Section 55-9-609 NMSA 1978, means: (A) whatever is acquired upon the sale, lease, license, exchange or other disposition of collateral; (B) whatever is collected on, or distributed on account of, collateral; (C) rights arising out of collateral; (D) to the extent of the value of collateral, claims arising out of the loss, nonconformity or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 630 - interference with the use of, defects or infringement of rights in, or damage to, the collateral; or (E) to the extent of the value of collateral and to the extent payable to the debtor or the secured party, insurance payable by reason of the loss or nonconformity of, defects or infringement of rights in, or damage to, the collateral; (65) "promissory note" means an instrument that evidences a promise to pay a monetary obligation, does not evidence an order to pay and does not contain an acknowledgment by a bank that the bank has received for deposit a sum of money or funds; (66) "proposal" means a record authenticated by a secured party, which record includes the terms on which the secured party is willing to accept collateral in full or partial satisfaction of the obligation it secures pursuant to Sections 55-9-620 through 55-9-622 NMSA 1978; (67) "pursuant to commitment", with respect to an advance made or other value given by a secured party, means pursuant to the secured party's obligation, whether or not a subsequent event of default or other event not within the secured party's control has relieved or may relieve the secured party from its obligation; (68) "record", except as used in "for record", "of record", "record or legal title" and "record owner", means underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 631 - information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; (69) "registered organization" means an organization organized solely under the law of a single state or the United States and as to which the state or the United States must maintain a public record showing the organization to have been organized; (70) "secondary obligor" means an obligor to the extent that: (A) the obligor's obligation is secondary; or (B) the obligor has a right of recourse with respect to an obligation secured by collateral against the debtor, another obligor or property of either; (71) "secured party" means: (A) a person in whose favor a security interest is created or provided for under a security agreement, whether or not any obligation to be secured is outstanding; (B) a person that holds an agricultural lien; (C) a consignor; (D) a person to which accounts, chattel paper, payment intangibles or promissory notes have been sold; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 632 - (E) a trustee, indenture trustee, agent, collateral agent or other representative in whose favor a security interest or agricultural lien is created or provided for; or (F) a person that holds a security interest arising under Section 55-2-401, Section 55-2-505, Subsection (3) of Section 55-2-711, Subsection (5) of Section 55-2A-508, Section 55-4-210 or Section 55-5-118 NMSA 1978; (72) "security agreement" means an agreement that creates or provides for a security interest; (73) "send", in connection with a record or notification, means: (A) to deposit in the mail, deliver for transmission or transmit by any other usual means of communication, with postage or cost of transmission provided for, addressed to any address reasonable under the circumstances; or (B) to cause the record or notification to be received within the time that it would have been received if properly sent under Subparagraph (A) of this paragraph; (74) "software" means a computer program and any supporting information provided in connection with a transaction relating to the program. The term does not include a computer program that is included in the definition of goods; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 633 - (75) "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States; (76) "supporting obligation" means a letter-of- credit right or secondary obligation that supports the payment or performance of an account, chattel paper, a document, a general intangible, an instrument or investment property; (77) "tangible chattel paper" means chattel paper evidenced by a record or records consisting of information that is inscribed on a tangible medium; (78) "termination statement" means an amendment of a financing statement that: (A) identifies, by its file number, the initial financing statement to which it relates; and (B) indicates either that it is a termination statement or that the identified financing statement is no longer effective; and (79) "transmitting utility" means a person primarily engaged in the business of: (A) operating a railroad, subway, street railway or trolley bus; (B) transmitting communications electrically, electromagnetically or by light; (C) transmitting goods by pipeline or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 634 - sewer; or (D) transmitting or producing and transmitting electricity, steam, gas or water. (b) "Control", as provided in Section 55-7-106 NMSA 1978, and the following definitions in other articles apply to this article: "applicant" . . . . . . . . . . . . . . . . Section 55-5-102 NMSA 1978; "beneficiary" . . . . . . . . . . . . . . . Section 55-5-102 NMSA 1978; "broker" . . . . . . . . . . . . . . . . . Section 55-8-102 NMSA 1978; "certificated security" . . . . . . . . . . Section 55-8-102 NMSA 1978; "check" . . . . . . . . . . . . . . . . . . Section 55-3-104 NMSA 1978; "clearing corporation" . . . . . . . . . . Section 55-8-102 NMSA 1978; "contract for sale" . . . . . . . . . . . . Section 55-2-106 NMSA 1978; "customer" . . . . . . . . . . . . . . . . Section 55-4-104 NMSA 1978; "entitlement holder" . . . . . . . . . . . Section 55-8-102 NMSA 1978; "financial asset" . . . . . . . . . . . . . Section underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 635 - 55-8-102 NMSA 1978; "holder in due course" . . . . . . . . . . Section 55-3-302 NMSA 1978; "issuer" (with respect to a letter of credit or letter-of-credit right) . . . . . . . . . . . . . . . Section 55-5-102 NMSA 1978; "issuer" (with respect to a security) . . . Section 55-8-201 NMSA 1978; "issuer" (with respect to documents of title) . . . . . . . . . . . . . . . . . . . . . . Section 55-7-102 NMSA 1978; "lease" . . . . . . . . . . . . . . . . . . Section 55-2A-103 NMSA 1978; "lease agreement" . . . . . . . . . . . . . Section 55-2A-103 NMSA 1978; "lease contract" . . . . . . . . . . . . . Section 55-2A-103 NMSA 1978; "leasehold interest" . . . . . . . . . . . Section 55-2A-103 NMSA 1978; "lessee" . . . . . . . . . . . . . . . . . Section 55-2A-103 NMSA 1978; "lessee in ordinary course of business" . . Section 55-2A-103 NMSA 1978; "lessor" . . . . . . . . . . . . . . . . . Section 55-2A-103 NMSA 1978; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 636 - "lessor's residual interest" . . . . . . . Section 55-2A-103 NMSA 1978; "letter of credit" . . . . . . . . . . . . Section 55-5-102 NMSA 1978; "merchant" . . . . . . . . . . . . . . . . Section 55-2-104 NMSA 1978; "negotiable instrument" . . . . . . . . . . Section 55-3-104 NMSA 1978; "nominated person" . . . . . . . . . . . . Section 55-5-102 NMSA 1978; "note" . . . . . . . . . . . . . . . . . . Section 55-3-104 NMSA 1978; "proceeds of a letter of credit" . . . . . Section 55-5-114 NMSA 1978; "prove" . . . . . . . . . . . . . . . . . . Section 55-3-103 NMSA 1978; "sale" . . . . . . . . . . . . . . . . . . Section 55-2-106 NMSA 1978; "securities account" . . . . . . . . . . . Section 55-8-501 NMSA 1978; "securities intermediary" . . . . . . . . . Section 55-8-102 NMSA 1978; "security" . . . . . . . . . . . . . . . . Section 55-8-102 NMSA 1978; "security certificate" . . . . . . . . . . Section underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 637 - 55-8-102 NMSA 1978; "security entitlement" . . . . . . . . . . Section 55-8-102 NMSA 1978; and "uncertificated security" . . . . . . . . . Section 55-8-102 NMSA 1978. (c) Chapter 12, Article 2A and Chapter 55, Article 1 NMSA 1978 contain general definitions and principles of construction and interpretation applicable throughout Chapter 55, Article 9 NMSA 1978." Section 282. Section 56-10-15 NMSA 1978 (being Laws 1989, Chapter 382, Section 2) is amended to read: "56-10-15. DEFINITIONS.--As used in the "Uniform Fraudulent Transfer Act": A. "affiliate" means: (1) a person who directly or indirectly owns, controls or holds, with power to vote, twenty percent or more of the outstanding voting securities of the debtor, other than a person who holds the securities: (a) as a fiduciary or agent without sole discretionary power to vote the securities; or (b) solely to secure a debt, if the person has not exercised the power to vote; (2) a corporation, twenty percent or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote, by the debtor or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 638 - a person who directly or indirectly owns, controls or holds, with power to vote, twenty percent or more of the outstanding voting securities of the debtor, other than a person who holds the securities: (a) as a fiduciary or agent without sole power to vote the securities; or (b) solely to secure a debt, if the person has not in fact exercised the power to vote; (3) a person whose business is operated by the debtor under a lease or other agreement, or a person substantially all of whose assets are controlled by the debtor; or (4) a person who operates the debtor's business under a lease or other agreement or controls substantially all of the debtor's assets; B. "asset" means property of a debtor, but the term does not include: (1) property to the extent it is encumbered by a valid lien; (2) property to the extent it is generally exempt under nonbankruptcy law; or (3) an interest in property held in tenancy by the [entireties] entirety to the extent it is not subject to process by a creditor holding a claim against only one tenant; C. "claim" means a right to payment, whether or not underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 639 - the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured; D. "creditor" means a person who has a claim; E. "debt" means liability on a claim; F. "debtor" means a person who is liable on a claim; G. "insider" includes: (1) if the debtor is an individual: (a) a relative of the debtor or of a general partner of the debtor; (b) a partnership in which the debtor is a general partner; (c) a general partner in a partnership described in Subparagraph (b) of this paragraph; or (d) a corporation of which the debtor is a director, officer or person in control; (2) if the debtor is a corporation: (a) a director of the debtor; (b) an officer of the debtor; (c) a person in control of the debtor; (d) a partnership in which the debtor is a general partner; (e) a general partner in a partnership described in Subparagraph (d) of this paragraph; or (f) a relative of a general partner, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 640 - director, officer or person in control of the debtor; (3) if the debtor is a partnership: (a) a general partner in the debtor; (b) a relative of a general partner in, a general partner of, or a person in control of the debtor; (c) another partnership in which the debtor is a general partner; (d) a general partner in a partnership described in Subparagraph (c) of this paragraph; or (e) a person in control of the debtor; (4) an affiliate or an insider of an affiliate as if the affiliate were the debtor; and (5) a managing agent of the debtor; H. "lien" means a charge against or an interest in property to secure payment of a debt or performance of an obligation and includes a security interest created by agreement, a judicial lien obtained by legal or equitable process or proceedings, a common-law lien or a statutory lien; I. "person" means an individual, partnership, corporation, association, organization, government or governmental subdivision or agency, business trust, estate, trust or any other legal or commercial entity; J. "property" means anything that may be the subject of ownership; K. "relative" means an individual related by underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 641 - consanguinity within the third degree as determined by the common law, a spouse, domestic partner or an individual related to a spouse or domestic partner within the third degree as so determined, and includes an individual in an adoptive relationship within the third degree; L. "transfer" means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset and includes payment of money, release, lease and creation of a lien or other encumbrance; and M. "valid lien" means a lien that is effective against the holder of a judicial lien subsequently obtained by legal or equitable process or proceedings." Section 283. Section 57-16-3 NMSA 1978 (being Laws 1973, Chapter 6, Section 3, as amended) is amended to read: "57-16-3. DEFINITIONS.--As used in Chapter 57, Article 16 NMSA 1978: A. "motor vehicle" means every self-propelled vehicle, having two or more wheels, by which a person or property may be transported on a public highway and includes recreational vehicles; B. "motor vehicle dealer" or "dealer" means any person who sells or solicits or advertises the sale of new or used motor vehicles. "Motor vehicle dealer" or "dealer" shall not include: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 642 - (1) receivers, trustees, administrators, executors, guardians or other persons appointed by or acting under judgment, decree or order of any court; (2) public officers while performing their duties as such officers; (3) persons making casual sales of their own vehicles duly registered and licensed to them by the state; or (4) finance companies, banks and other lending institutions covering sales of repossessed vehicles; C. "person" means every natural person, partnership, corporation, association, trust, estate or any other legal entity; D. "prospective purchaser" means a person who has a bona fide written agreement to purchase a franchise; E. "manufacturer" means any person who manufactures or assembles new motor vehicles either within or outside of this state; F. "distributor" means any person who distributes or sells new or used motor vehicles to dealers and who is not a manufacturer; G. "representative" means any person who is or acts as an agent, employee or representative of a manufacturer or distributor and who performs any duties in this state relating to promoting the distribution or sale of new or used motor vehicles or contacts dealers in this state on behalf of a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 643 - manufacturer or distributor; H. "franchise" means an oral or written arrangement for a definite or indefinite period in which a manufacturer, distributor or representative grants to a motor vehicle dealer a license to use a trade name, service mark or related characteristic and in which there is a community of interest in the marketing of motor vehicles or services related to marketing, service or repair of motor vehicles at wholesale, retail, leasing or otherwise; I. "fraud" includes, in addition to its normal legal connotation, the following: (1) a misrepresentation in any manner, whether intentionally false or due to gross negligence, of a material fact; (2) a promise or representation not made honestly and in good faith; and (3) an intentional failure to disclose a material fact; J. "sale" includes: (1) the issuance, transfer, agreement for transfer, exchange, pledge, hypothecation or mortgage in any form, whether by transfer in trust or otherwise, of any motor vehicle or interest therein or of any franchise related thereto; and (2) any option, subscription or other contract underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 644 - or solicitation looking to a sale or offer or attempt to sell in any form, whether spoken or written. A gift or delivery of any motor vehicle or franchise with respect thereto with, or as, a bonus on account of the sale of anything shall be deemed a sale of such motor vehicle or franchise; K. "motorcycle" means any motor vehicle used on or off a public highway that has an unladen weight of less than one thousand five hundred pounds; L. "recreational vehicle" means any motor vehicle with a camping body that either has its own motive power or is drawn by another vehicle; M. "designated family member" means a spouse, domestic partner, child, grandchild, parent, brother or sister of a deceased or incapacitated dealer who is entitled to inherit the dealer's ownership interest in the dealership under the terms of a will or the laws of intestate succession in this state. In the case of an incapacitated dealer, the term means the person appointed by a court as the legal representative of the dealer's property. The term also includes the appointed and qualified personal representative and the testamentary trustee of a deceased dealer. However, the term shall be limited to mean only that individual designated by the motorcycle dealer in a written document filed with the manufacturer, distributor or representative in the event that such a document has been filed; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 645 - N. "current price" means an amount equal to the price listed in the manufacturer's or distributor's printed price list in effect when the franchise is terminated, less applicable trade and cash discounts; O. "dealer cost" means an amount equal to the sum of the original invoice price that the dealer paid for inventory and the cost of the delivery of the inventory from the manufacturer or distributor to the dealer, less applicable discounts; P. "inventory" means new or unused motorcycles, motorcycle attachments and repair parts that are provided by a manufacturer or distributor to a dealer under a franchise agreement and that are purchased within thirty-six months of the termination of the franchise or are listed in the manufacturer's or distributor's current sales manual or price list at the time that the franchise is terminated; and Q. "relevant market area" means an area of a size specified in this subsection around an existing motor vehicle dealer's place of business. The size of the area shall be the greater of the area of responsibility specified in the dealer's franchise or a circle with a center at the dealer's place of business and a radius of: (1) seven miles, if the population of the county in which the dealership is located is two hundred fifty thousand or more; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 646 - (2) fifteen miles, if the population of the county in which the dealership is located is less than two hundred fifty thousand but is thirty-five thousand or more; or (3) twenty miles in all other cases. If the existing and proposed dealerships are in different counties, the lesser of the applicable mileage limitations shall be used. For purposes of this subsection, the population of any area shall be determined in accordance with the most recent decennial census or the most recent population update from the national planning data corporation or other similar recognized source, whichever is later." Section 284. Section 57-16-9.1 NMSA 1978 (being Laws 1985, Chapter 213, Section 4) is amended to read: "57-16-9.1. SUCCESSION TO MOTORCYCLE DEALERSHIP.-- A. A manufacturer, distributor or representative shall not prevent or refuse to give effect to the succession to ownership or management control of a motorcycle dealership upon the death or incapacity of the dealer by the surviving spouse or surviving domestic partner, heir, legatee or devisee nor shall the manufacturer, distributor or representative interfere, prevent or hinder, either directly or indirectly, the continuance of the business by reason of such succession, except as otherwise provided in this [act] section. B. Any designated family member of a deceased or incapacitated dealer may succeed the motorcycle dealer in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 647 - ownership or management control under the existing agreement; provided that the designated family member provides notice to the manufacturer, distributor or representative, in writing by registered mail, of the intention to succeed to the dealership within one hundred [and] twenty days after the dealer's death or incapacity and the successor agrees to be bound by all the terms of the original agreement. The successor [must] shall meet the reasonable criteria applied by the manufacturer, distributor or representative to new dealers. C. The rejection of succession, without good cause, shall constitute an unfair termination or cancellation, regardless of the terms or provisions of the franchise or selling agreement. If the manufacturer, distributor or representative believes that good cause exists for rejection, [such] the manufacturer, distributor or representative shall provide notice to the successor, in writing by registered mail, within sixty days of the receipt of the notice of intention to succeed. In no event shall the contractual term of any franchise or selling agreement expire, without the written consent of the successor, prior to the expiration of at least ninety days following such written notice. During the ninety-day period, the designated family member or successor may petition a court to modify [such] the ninety-day stay or to extend it pending a final determination of [such] the proceedings on the merits. The court shall have authority underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 648 - to grant preliminary and final injunctive relief. D. A motorcycle dealer may designate any person as the successor by written instrument filed with the manufacturer, distributor or representative and [such] the written instrument shall be controlling." Section 285. Section 58-1-8 NMSA 1978 (being Laws 1963, Chapter 305, Section 8, as amended) is amended to read: "58-1-8. PAYMENT FROM ACCOUNT WHEN NO EXECUTOR OR ADMINISTRATOR HAS QUALIFIED.-- A. Where no executor or administrator of a deceased depositor has qualified and given notice of [his] the executor's or administrator's qualifications to the bank, it may in its discretion and at any time after the death of the depositor pay out of all accounts maintained with it by [him] the executor or administrator in [his] the executor's or administrator's individual capacity all sums [which] that do not exceed two thousand dollars ($2,000) in the aggregate: (1) to the surviving spouse or surviving domestic partner; or (2) if there is no surviving spouse [then] or surviving domestic partner, to the surviving next of kin of the closest degree of lineal consanguinity. B. A bank may, in its discretion and at any time after sixty days from the death of a depositor whose residence address according to the books of the bank is outside this underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 649 - state, pay the balance of [his] the depositor's accounts, not exceeding two thousand dollars ($2,000) in the aggregate, to an executor or administrator who has qualified in another state unless the bank has received written notice of the appointment of an executor or administrator in this state. C. No bank shall be liable for damage, penalty, tax or claims of creditors of the estate by reason of any payment or refusal to pay made pursuant to this section." Section 286. Section 58-1-14 NMSA 1978 (being Laws 1963, Chapter 305, Section 14) is amended to read: "58-1-14. SEARCH PROCEDURE ON DEATH.-- A. A lessor shall permit the person named in a court order for the purpose, or if no order has been served upon the lessor, the spouse or domestic partner, a parent, an adult descendant or a person named as an executor in a copy of a purported will produced by [him] the person, to open and examine the contents of a safe deposit box leased by a decedent, or any documents delivered by a decedent for safekeeping, in the presence of an officer of the lessor; and the lessor, if so requested by such person, may deliver upon execution of receipt therefor: (1) any writing purporting to be a will of the decedent; (2) any writing purporting to be a deed to a burial plot or to give burial instructions to the person underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 650 - making the request for a search; and (3) any document purporting to be an insurance policy on the life of the decedent to the beneficiary named therein. B. No other contents shall be removed pursuant to this section except at the lessor's liability until a special administrator, an administrator or an executor qualifies and makes claim to the contents." Section 287. Section 58-5-1 NMSA 1978 (being Laws 1975, Chapter 330, Section 1, as amended) is amended to read: "58-5-1. BOARD OF DIRECTORS--OATHS.-- A. A board member, when initially elected, shall take an oath that the board member: (1) [he] will, so far as the duty devolves upon [him] the board member, diligently and honestly administer the affairs of the bank and will not knowingly violate or willingly permit to be violated any of the provisions of the Banking Act; and (2) [he] is the owner, in good faith and in [his] the board member's own right or jointly with [his] the board member's spouse or domestic partner, of the number of shares of stock required by law standing in [his] the board member's name on the books of the corporation and that the stock is not hypothecated or in any way pledged as security for any loan or debt. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 651 - B. The oath, subscribed by the board member making it and certified by the notary public before whom it was taken, shall be immediately transmitted to the director [of the division] and shall be filed and preserved in [his] the director's office." Section 288. Section 58-10-103 NMSA 1978 (being Laws 1967, Chapter 83, Section 1) is amended to read: "58-10-103. PAYMENT FROM SAVINGS ACCOUNT OF DECEDENT.-- A. Where no executor or administrator of a deceased savings account depositor has qualified and given notice of [his] qualification to a savings and loan association, it may pay out of all savings accounts maintained with it by the deceased in [his] an individual capacity all sums [which] that do not exceed two thousand dollars ($2,000) in the aggregate: (1) to the surviving spouse or surviving domestic partner; or (2) to the next of kin; in the above order of priority in case of conflicting claims. B. A savings and loan association may, at any time after sixty days from the death of a depositor whose residence address, according to the books of the association, is outside this state, pay the balance of [his] the depositor's accounts not exceeding two thousand dollars ($2,000) in the aggregate to an executor or administrator who has qualified in another state unless the association has received written notice of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 652 - the appointment of an executor or administrator in this state. C. No savings and loan association shall be liable for damage, penalty, tax or claims of creditors of the estate by reason of any payment or refusal to pay made pursuant to this section. D. Payment under this section releases a savings and loan association from all liability for the amount paid." Section 289. Section 58-10-108 NMSA 1978 (being Laws 1971, Chapter 242, Section 8) is amended to read: "58-10-108. SEARCH PROCEDURE ON DEATH.-- A. A lessor shall permit the person named in a court order for the purpose or, if no order has been served upon the lessor, the spouse or domestic partner, a parent, an adult descendant or a person named as an executor in a copy of a purported will produced by [him] the person to open and examine the contents of a safe deposit box leased by a decedent or any documents delivered by a decedent for safekeeping, in the presence of an officer of the lessor. The lessor, if so requested by such person and upon execution of a receipt, may deliver: (1) to the person making the request, any writing purporting to be a will of the decedent; (2) to the person making the request, any writing purporting to be a deed to a burial plot or to give burial instructions; and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 653 - (3) to the beneficiary named in the policy, any document purporting to be an insurance policy on the decedent's life. B. No other contents shall be removed pursuant to this section except at the lessor's liability until a special administrator, an administrator or an executor qualifies and makes claim to the contents." Section 290. Section 58-11-2 NMSA 1978 (being Laws 1987, Chapter 311, Section 2, as amended) is amended to read: "58-11-2. DEFINITIONS.--As used in the Credit Union Act: A. "board member" means a member of the board of directors of a credit union; B. "capital" means share accounts, membership shares, reserves and undivided earnings; C. "credit union" means a cooperative, nonprofit, financial institution organized under or subject to the Credit Union Act for the purposes of encouraging thrift among its members, creating a source of credit at fair and reasonable rates of interest and providing an opportunity for its members to use and control their own money on a democratic basis in order to improve their economic and social condition; D. "deposit account" means a balance held by a credit union and established by a person in accordance with standards specified by the credit union, including balances designated as deposits, deposit certificates, checking underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 654 - accounts or other names. Ownership of a deposit account does not confer membership or voting rights and does not represent an interest in the capital of the credit union upon dissolution or conversion to another type of institution; E. "director" means the director of the financial institutions division of the regulation and licensing department; F. "division" means the financial institutions division of the regulation and licensing department; G. "executive officer" means any person who is responsible for the management of the credit union as provided in the bylaws of the credit union and includes the chief executive officer, the president, a vice president, the credit union manager, an assistant manager or a person who is assigned and performs the management duties appropriate to those offices; H. "governmental unit" means any board, agency, department, authority, instrumentality or other unit or organization of the United States, this state or any political subdivision thereof; I. "immediate family" means those persons related by blood, [or] marriage or domestic partnership as well as stepchildren, foster children and adopted children or persons who live in the same residence and maintain a single economic unit; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 655 - J. "insolvent" means the condition that results when the cash value of assets is less than the liabilities and members' share and deposit accounts; K. "insuring organization" means the national credit union administration or any other insurer that has been approved by the director to provide aid and financial assistance to credit unions that are in the process of liquidation or are incurring financial difficulty, in order that the share and deposit accounts in credit unions shall be protected or guaranteed against loss without limit or up to a specified level for each account; L. "membership share" means a balance held by a credit union and established by a member in accordance with standards specified by the credit union. Ownership of a membership share represents an interest in the capital of the credit union upon dissolution or conversion to another type of institution; M. "organization" means any corporation, association, partnership, society, firm, syndicate, trust or other legal entity; N. "person" means any individual, organization or governmental unit; O. "primary share account" means a share account that a credit union's bylaws designate as conferring voting rights; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 656 - P. "risk assets" means all assets of the credit union except those exempted by the director by regulation; Q. "service facility" means any building, machine or device, whether mechanical, electronic or otherwise, that is operated or maintained, in whole or in part, to provide services to members; and R. "share account" means a balance held by a credit union and established by a member in accordance with standards specified by the credit union, including balances designated as shares, share certificates, share draft accounts or other similar names. Ownership of a share account confers membership and represents an interest in the capital of the credit union upon dissolution or conversion to another type of institution." Section 291. Section 58-11-31 NMSA 1978 (being Laws 1987, Chapter 311, Section 31, as amended) is amended to read: "58-11-31. CONFLICTS OF INTEREST.--No board member, committee member, executive officer, agent or employee of a credit union shall in any manner, directly or indirectly, participate in the deliberation upon or the determination of any question affecting [his] that person's pecuniary interest, the pecuniary interest of [his] that person's parents, children or siblings or spouses or domestic partners of any of those individuals or the pecuniary interest of any organization, other than the credit union, in which [he] that underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 657 - person is directly or indirectly interested." Section 292. Section 58-11A-4 NMSA 1978 (being Laws 1991, Chapter 51, Section 24) is amended to read: "58-11A-4. SEARCH PROCEDURE UPON DEATH OF LESSEE.-- A. A lessor shall permit the person named in a court order, or if no order has been served upon the lessor, the spouse or domestic partner, parent, an adult descendant or a person named as a personal representative in a copy of a purported will produced by [him] the personal representative, to open and examine the contents of a safe deposit box leased by a decedent or any documents delivered by a decedent for safekeeping, in the presence of an officer of the lessor. The lessor, if so requested by that person, may deliver upon execution of a receipt: (1) any writing purported to be a will of the decedent; (2) any writing purported to be a deed to a burial plot or burial instructions to the person making the request for a search; or (3) any document purported to be an insurance policy on the life of the decedent to the person named as a beneficiary in the policy. B. No other contents of a safe deposit box shall be removed pursuant to this section, except as provided in the Probate Code." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 658 - Section 293. Section 58-15-22 NMSA 1978 (being Laws 1955, Chapter 128, Section 20) is amended to read: "58-15-22. ASSIGNMENTS--VALIDITY--AMOUNT COLLECTIBLE.-- [(a) VALIDITY AND PAYMENT OF ASSIGNMENT No] A. An assignment of or order for payment of any salary, wages, commissions or other compensation for services earned or to be earned that is given to secure any loan made by any licensee [shall be] is not valid unless the amount of [such] the loan is paid to the borrower simultaneously with its execution [nor shall any such]. An assignment or order, or [any] chattel mortgage or other lien on household furniture then in the possession and use of the borrower, [be] is not valid unless it is in writing, signed in person by the borrower, or if the borrower is married or in a domestic partnership, unless it is signed in person by both husband and wife or both domestic partners, provided that written assent of a spouse [shall] or domestic partner is not [be] required when the husband and wife or the domestic partners have been living separate and apart for a period of at least two months prior to the making of [such] the assignment, order, mortgage or lien. [(b) AMOUNT COLLECTIBLE UNDER ASSIGNMENT] B. A valid assignment or order for the payment of future salary, wages, commissions or other compensation for services may be given as security for a loan made by any licensee [or licensees and]. Under such an assignment or order, a sum not underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 659 - to exceed ten [(10%)] percent of the borrower's salary, wages, commissions or other compensation for services shall be collectible from the employer of the borrower by the licensee at the time of each payment to the borrower of [such] the salary, wages, commissions or other compensation for services, from the time that a copy of [such] the assignment, verified by the oath of the licensee or [his] the licensee's agent, together with a similarly verified statement of the amount unpaid upon [such] the loan and a printed copy of this section, is served upon the employer. Not more than one such assignment of wages [shall be] is valid [hereunder] or acceptable by an employer." Section 294. Section 58-18A-3 NMSA 1978 (being Laws 1979, Chapter 381, Section 3, as amended) is amended to read: "58-18A-3. DEFINITIONS.--As used in the Municipal Mortgage Finance Act: A. "agreement" means a written agreement between two or more municipalities designating one of [such] the municipalities as the "issuer" on behalf of the other participating municipality or municipalities, establishing the issuer's area of operations for purposes of the program and containing such other terms and conditions as the parties deem appropriate; B. "area of operation" means, with respect to a municipality, the area within the boundaries of the planning underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 660 - and platting jurisdiction of the municipality established in accordance with Section 3-19-5 NMSA 1978. Upon approval by the governing bodies of two or more municipalities, the area of operation of a municipality acting as an issuer pursuant to an agreement may be enlarged to include all or any part of the areas of operation of the other participating municipalities, and [such] the area of operation, as enlarged, shall be deemed the jurisdiction of the issuer for all purposes relating to the issuance of bonds under the law of this state; C. "available net proceeds" means that portion of the proceeds of bonds issued pursuant to the provisions of the Municipal Mortgage Finance Act available to purchase mortgage loans after deducting any costs related to issuance of bonds and amounts apportioned to capitalized interest, reserves or sinking funds; D. "bonds" means the single family mortgage revenue bonds and notes authorized under the Municipal Mortgage Finance Act and includes any other evidence of indebtedness issued [hereunder] under that act; E. "municipality" means any incorporated city, town or village or incorporated county, whether incorporated under a general act, a special act or a special charter; F. "existing mortgage loan" means a loan to finance the purchase of a single family residence in the issuer's area of operation occupied or intended to be occupied by the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 661 - mortgagor as the mortgagor's primary place of residence and secured by a mortgage made by a mortgage lender prior to the date the mortgage lender submitted an application to participate in the issuer's program; G. "family" means a person or a group of persons consisting of but not limited to the head of a household, the spouse or domestic partner, if any, and children or other dependents, if any, who are allowable as personal exemptions for federal income tax purposes; H. "FHA" means the federal housing administration; I. "FHLMC" means the federal home loan mortgage corporation; J. "FNMA" means the federal national mortgage association; K. "forward commitment mortgage loan" means a loan: (1) secured by a mortgage; (2) made to a person of low or moderate income to finance the acquisition or rehabilitation of a single family residence in the issuer's area of operation occupied or intended to be occupied by the mortgagor as the mortgagor's primary place of residence; (3) the commitment for which was made by the mortgage lender after the date the mortgage lender submitted an application to participate in the issuer's program; and (4) [which] that shall not include a loan underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 662 - the proceeds of which are used, directly or indirectly, to refinance an existing permanent mortgage loan [or loans] for the present mortgagor, unless the primary purpose of [such] the forward commitment mortgage loan is to finance the rehabilitation of [such] a single family residence; L. "governing body" means the city council, the city commission, the board of trustees, the county council or the town council of an issuer; M. "issuer" means a municipality [which] that has undertaken to issue bonds pursuant to the provisions of the Municipal Mortgage Finance Act; N. "mortgage" means a deed of trust, mortgage deed, mortgage or other instrument creating a first lien subject to such title exceptions as may be acceptable to the issuer, on either: (1) a fee interest in real property located within the issuer's area of operation; or (2) a leasehold on such a fee interest [which] that has a remaining term at the time of computation that exceeds the maturity of the loan secured thereby; O. "mortgage lender" means any bank, bank or trust company, trust company, mortgage company, mortgage banker, national banking association, savings bank, savings and loan association, building and loan association and any other financial institution, provided [such] that the mortgage underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 663 - lender: (1) is qualified to do business in New Mexico; (2) operates a business location within the issuer's area of operations [which] that services loans made within the area; and (3) is approved as an FNMA or FHLMC seller and servicer; P. "mortgage loan" means: (1) an existing mortgage loan; or (2) a forward commitment mortgage loan; Q. "mortgage purchase agreement" means a written agreement between a mortgage lender and an issuer providing for the purchase by the issuer of mortgage loans originated by the mortgage lender, provided that a mortgage purchase agreement shall: (1) not permit one person or family to obtain or assume more than one forward commitment mortgage loan or reinvestment mortgage made pursuant to any one issue of bonds; and (2) prohibit the assumption of any forward commitment mortgage loan or reinvestment mortgage loan by any person other than a person of low or moderate income as determined by the issuer for a period of two years from the date of [such] the mortgage; R. "person of low or moderate income" means a person underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 664 - or family [which] that lacks the amount of income, as determined by the issuer undertaking the program, necessary to [the] purchase, without financial assistance, [of] decent, safe and sanitary housing. [Provided that] The amount of the combined annualized income of the mortgagor and the mortgagor's spouse or domestic partner shall be an amount not to exceed thirty-four thousand dollars ($34,000), as conclusively determined by the mortgage lender in the normal course of its lending activities, upon mortgagor certification, provided that such determination is made in accordance with FNMA or FHLMC credit underwriting standards. Each issuer shall establish uniform criteria and rules and regulations to identify the persons of low or moderate income within its area of operation, and the determination of the issuer is conclusive; S. "program" means a mortgage purchase program of an issuer undertaken pursuant to the provisions of the Municipal Mortgage Finance Act; T. "rehabilitation" or "rehabilitate" means substantial renovation or reconstruction, including an increase in living area, of an existing single family residence necessary to put [such] the single family residence in decent, safe and sanitary condition or to cause [such] the single family residence to comply with applicable building codes and [shall] does not include routine or ordinary underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 665 - repairs, improvements or maintenance such as interior decorating, remodeling or exterior painting, except in conjunction with other substantial renovation or reconstruction; U. "reinvestment mortgage loan" means a loan: (1) secured by a mortgage; (2) made to a person of low or moderate income to finance the acquisition or rehabilitation of a single family residence in the issuer's area of operation occupied or intended to be occupied by the mortgagor as the mortgagor's primary place of residence; (3) the commitment for which is made by the mortgage lender after the date the mortgage lender submits an application to sell existing mortgage loans to the issuer; (4) made in satisfaction of the obligation of the mortgage lender under a mortgage purchase agreement; and (5) [which] that shall not include: (a) a forward commitment mortgage loan; or (b) a loan the proceeds of which are used, directly or indirectly, to refinance an existing permanent mortgage loan [or loans] for the present mortgagor, unless the primary purpose of [such] the reinvestment mortgage loan is to finance the rehabilitation of [such] a single family residence; V. "servicer" means the mortgage lender or its underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 666 - designee servicer [which] that has executed a servicing agreement with an issuer; W. "servicing agreement" means a written agreement between an issuer and a servicer providing for the servicing of mortgage loans secured by the issuer; X. "single family residence" means real estate or an interest [therein] in real estate upon which is located or is to be located or constructed a structure or structures, including condominiums, to be used as a residence for one to four families, provided that the owner or owners of [such] the structure or structures [occupy such] occupies the residence, or at least one unit of a structure containing two to four family units, as [their] the owner's principal residence; Y. "state" means the state of New Mexico; and Z. "VA" means the veterans administration." Section 295. Section 58-18B-3 NMSA 1978 (being Laws 1994, Chapter 146, Section 3, as amended) is amended to read: "58-18B-3. DEFINITIONS.--As used in the Low-Income Housing Trust Act: A. "appropriate financial institution service charges and fees" means those service charges and fees that a financial institution charges its customers on demand deposit accounts; B. "division" means the financial institutions division of the regulation and licensing department; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 667 - C. "escrow closing agent" means an escrow agent other than a title company that acts in the normal course of business as the agent of the seller and buyer of real estate for the purpose of consummating a sale, including the performance of the following functions: (1) preparation of deeds, mortgages, promissory notes, deeds of trust, real estate contracts, assignments or other documents incidental to the sale as permitted by law; (2) calculations and disbursements of prorated taxes, insurance premiums, utility bills and other charges incidental to the sale; (3) preparation of sellers' and buyers' closing statements; (4) supervision of signing of documents; (5) collection and disbursement of down payments, realtors' commissions, fees and other charges pursuant to a sales agreement; and (6) recordation of documents; D. "escrow servicing agent" means a person who in the normal course of business collects and disburses funds received from real estate-related financing instruments on behalf of a lender or borrower; E. "first-time home buyer" means: (1) an individual or the individual's spouse or domestic partner who has not owned a home other than a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 668 - manufactured home during the three-year period prior to the purchase of a home; or (2) an individual who is a displaced homemaker or a single parent; F. "fund" means the land title trust fund created pursuant to the provisions of the Land Title Trust Fund Act; G. "low-income persons" means a household consisting of a single individual or a family or unrelated individuals living together when the household's total annual income does not exceed eighty percent of the median income for the area, as determined by the United States department of housing and urban development and as adjusted for family size, or other income ceiling determined for the area on the basis of that department's findings that such variations are necessary because of prevailing levels of construction costs or fair market rents or unusually high or low family incomes; H. "person" means an individual or any other legal entity; I. "property manager" means a person who acts in the normal course of business as the agent for the owner of real property for the purpose of property rental, leasing and management; and J. "trustee" means the New Mexico mortgage finance authority." Section 296. Section 58-30-7 NMSA 1978 (being Laws 2003, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 669 - Chapter 362, Section 7, as amended) is amended to read: "58-30-7. ADMINISTRATION OF INDIVIDUAL DEVELOPMENT ACCOUNT PROGRAMS.-- A. An individual development account may be established for an eligible individual; provided that the money deposited in the account is expended for allowable uses for the account owner or the account owner's spouse, domestic partner or dependents unless otherwise approved by the program administrator. B. An individual development account program shall be approved and monitored by the [director] secretary of workforce solutions for compliance with applicable law, the Individual Development Account Act and rules adopted pursuant to that act. C. The program administrator shall establish a reserve account sufficient to meet the matching fund commitments made to all account owners participating in the individual development account program and shall report at least quarterly to each account owner the amount of money available in the reserve account for use by the program administrator to match withdrawals for allowable uses. Notwithstanding any matching commitment otherwise required, the amount of state funds deposited in a reserve account during a calendar year to match deposits from any single account owner shall not exceed the higher of: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 670 - (1) two thousand dollars ($2,000); or (2) an amount determined by rule of the office. D. The program administrator shall provide financial education and other necessary training pertinent to allowable uses by account owners, develop partnerships with financial institutions, develop matching funds and manage the operations of an individual development account that is established within the program. E. An eligible individual may open an individual development account upon verification by the program administrator that the individual maintains no other individual development account. F. More than one eligible individual per household may hold an individual development account. G. An account owner shall complete a financial education program prior to the withdrawal of money from the account owner's individual development account unless written approval is obtained from the program administrator." Section 297. Section 58-30-8 NMSA 1978 (being Laws 2003, Chapter 362, Section 8, as amended) is amended to read: "58-30-8. ALLOWABLE USES--WITHDRAWALS FROM INDIVIDUAL DEVELOPMENT ACCOUNTS--FORFEITURE OF MATCHING FUNDS FROM RESERVE ACCOUNT--LOSS OF ELIGIBLE INDIVIDUAL STATUS.-- A. Allowable uses of the money withdrawn from an individual development account are limited to the following: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 671 - (1) expenses to attend an approved post- secondary or vocational educational institution, including payment for tuition, books, supplies and equipment required for courses; (2) costs to acquire or construct a principal residence as defined in rules adopted pursuant to the Individual Development Account Act that is the first principal residence acquired or constructed by the account owner; (3) costs of major home improvements or repairs on the home of the account owner; (4) capitalization or costs to start or expand a business, including capital, plant, equipment, operational and inventory expenses, attorney and accountant fees and other costs normally associated with starting or expanding a business; (5) acquisition of a vehicle necessary to obtain or maintain employment by an account owner or the spouse or domestic partner of an account owner; and (6) in the case of a deceased account owner, amounts deposited by the account owner and held in an individual development account shall be distributed directly to the account owner's spouse or domestic partner, or if the spouse or domestic partner is deceased or there is no spouse or domestic partner, to a dependent or other named beneficiary of the deceased, or if the recipient is eligible to maintain underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 672 - the account, the account and matching funds designated for that account from a reserve account may be transferred and maintained in the name of the surviving spouse or surviving domestic partner, dependent or beneficiary. B. Unless otherwise approved by the program administrator pursuant to the provisions of Subsection D of this section, account owners qualifying as eligible individuals pursuant to the provisions of Subsection B or C of Section 58-30-4 NMSA 1978 shall not be permitted to withdraw money from an individual development account until such time as the account owners have completed a high school curriculum at a public or accredited private New Mexico high school or received a general educational development certificate. C. Except as provided in Subsection D of this section, if an account owner withdraws money from an individual development account for a use other than an allowable use, the account owner forfeits a proportionate amount of matching funds from the reserve account, as set forth in the agreement between the program administrator and the account owner. D. The program administrator may approve a withdrawal by an account owner from an individual development account to be used for a purpose other than an allowable use only for serious emergencies as specified in the rules adopted by the office. For such an approved withdrawal, the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 673 - proportionate matching funds in the reserve account shall remain in the reserve account for twelve months following the withdrawal and, if an amount equal to the withdrawn money is redeposited in the individual development account within the twelve months, the matching funds shall again be available to match withdrawals for allowable uses. E. At the request of the account owner and with the written approval of the program administrator, amounts may be withdrawn from the account owner's individual development account and deposited in another individual development account established for an eligible individual who is the account owner's spouse, domestic partner or dependent." Section 298. Section 59A-9-26 NMSA 1978 (being Laws 1984, Chapter 127, Section 159) is amended to read: "59A-9-26. PROHIBITED INVESTMENTS AND INVESTMENT UNDERWRITING.-- A. In addition to investments excluded pursuant to other provisions of the Insurance Code, an insurer shall not acquire, invest in or lend upon the security of: (1) issued shares of its own capital stock, except as provided in Section [568 of the Insurance Code (purchase of own shares by stock insurer)] 59A-34-22 NMSA 1978. No such shares shall be deemed an asset of the insurer in any determination of its financial condition; (2) securities issued by a corporation or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 674 - enterprise the controlling interest of which is, or, [will] after such acquisition by the insurer will be, held directly or indirectly by the insurer or any combination of the insurer and the insurer's directors, officers, subsidiaries or controlling stockholders (other than the parent corporation), and the spouses or domestic partners and children of any of the foregoing individuals. Investments in controlled insurance corporations or subsidiaries under Sections [144 and 145 of this article] 59A-9-11 and 59A-9-12 NMSA 1978 are not subject to this section; (3) any note or other evidence of indebtedness of any director, officer, employee or controlling stockholder of the insurer, or of the spouse, domestic partner or child of any of the foregoing individuals, except as to policy loans authorized under Section [148 of this article] 59A-9-15 NMSA 1978; or (4) any real estate in which any officer or director or controlling stockholder (other than the parent corporation) of the insurer has a financial interest. B. No insurer shall underwrite or participate in underwriting of an offering of securities or property of any other person. This provision shall not prohibit the insurer from having a subsidiary [which] that is a principal underwriter of a registered investment company (mutual fund). C. No insurer shall enter into an agreement to underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 675 - withhold from sale any of its securities or property, and disposition of its assets shall at all times be within control of the insurer." Section 299. Section 59A-12-19 NMSA 1978 (being Laws 1984, Chapter 127, Section 220) is amended to read: "59A-12-19. TEMPORARY LICENSES.-- A. The superintendent may issue a temporary agent or solicitor license to an individual otherwise qualified therefor except as to taking an examination, in the following cases: (1) to the surviving spouse, surviving domestic partner or next of kin of a licensed agent or solicitor becoming deceased; (2) to the spouse, domestic partner, next of kin, employee or legal guardian of such an agent or solicitor disabled by sickness, injury or insanity; (3) to a surviving employee of a firm or corporation licensed as agent, upon death or disability of an individual duly designated to exercise the license powers; (4) to an individual designated by a licensed agent conducting an established insurance agency in this state, to replace an agent no longer associated with the agency; (5) to a salaried employee of an authorized insurer sent to this state by the insurer to take the place of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 676 - a licensed agent or solicitor; (6) to the designee of a licensed agent entering upon active service in the armed forces of the United States; or (7) to an applicant for license as a life insurance agent or life insurance solicitor, only for writing debit or industrial insurance as defined in Chapter 59A, Article 20 [of the Insurance Code] NMSA 1978, if the applicant is in good faith taking a course of study and instruction under the insurer's supervision, or is currently enrolled with an accredited educational institution of higher learning in this state and studying insurance business fundamentals. A course of study so conducted by the insurer must be one approved by the superintendent. The insurer and applicant may assume that the license will be issued in due course, effective as of the date that the application was filed with the superintendent, unless the superintendent notifies the insurer to the contrary within fifteen [(15)] days after the date of application. B. Any such temporary license shall be for a period of three [(3)] months, subject to extension by the superintendent for an additional three [(3)] months upon application and good cause shown; except, that a temporary license issued under Paragraph (7) [above] of Subsection A of this section shall not be extended. A second temporary underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 677 - license shall not be issued to the same licensee within six [(6)] months after expiration of the initial temporary license." Section 300. Section 59A-17A-5 NMSA 1978 (being Laws 2005, Chapter 275, Section 5) is amended to read: "59A-17A-5. EXCEPTION PROCEDURES.-- A. As used in this section, "extraordinary life circumstance" means: (1) an acute or chronic medical condition, illness, injury or disease; (2) divorce; (3) death of a spouse, domestic partner, child or parent; (4) involuntary loss of employment for more than three consecutive months; (5) identity theft; (6) total or other loss that makes a home uninhabitable; or (7) other circumstances prescribed by the superintendent in a rule. B. Insurers that use credit information to calculate an insurance score or to underwrite, rate or renew personal insurance coverage shall, upon written request from a consumer, provide a reasonable exception to the insurer's rates, rating classifications, company placement, tier underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 678 - placement or underwriting policies, procedures or guidelines when that consumer's credit information has been adversely impacted by an extraordinary life circumstance that has occurred within three years of the date of application for or renewal of personal insurance coverage. C. Insurers shall file their extraordinary life circumstances exception policies and procedures and amendments to the policies and procedures with the superintendent. Filings shall include the following: (1) a list of extraordinary life circumstances; (2) procedures describing how a consumer may apply for the extraordinary life circumstances exception; (3) a description of the required substantiating information; (4) general guidelines for when an extraordinary life circumstances exception will be granted; (5) a description of how a consumer's treatment in underwriting or rating would be modified by the granting of an extraordinary life circumstances exception; (6) time frames for considering the extraordinary life circumstances exception request; and (7) any other information prescribed by the superintendent in a rule. D. An insurer's extraordinary life circumstances exception policies and procedures shall be effective for use underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 679 - upon filing with the superintendent. E. The superintendent may disapprove an insurer's extraordinary life circumstances exception policies or procedures at any time upon providing the insurer with a sixty-day written notice setting forth the reasons for the disapproval. Disapproval shall be based upon a determination that the extraordinary life circumstances exception policies and procedures as contained in the filing are inadequate pursuant to this section, and the notice of disapproval shall specify the respects in which they are inadequate. An insurer affected by a disapproval may request a hearing before the superintendent pursuant to Section 59A-4-15 NMSA 1978, and the request for a hearing stays the effectiveness of the disapproval. No disapproval shall affect an action or determination made by an insurer concerning an application or policy of insurance made prior to the date of a notice of final determination of the disapproval. F. An insurer may require the consumer to provide reasonable, independently verifiable written documentation of the event and the direct effect of the event on the consumer's credit before granting an exception. G. An insurer that grants an extraordinary life circumstances exception shall maintain that exception for an amount of time that is reasonable for the particular circumstance. Once that reasonable amount of time is underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 680 - exhausted, the insurer is not required to grant another exception for the same specific extraordinary life circumstance. H. An insurer is not out of compliance with a law or rule relating to underwriting, rating or rate filing as a result of granting an exception under this section." Section 301. Section 59A-18-8 NMSA 1978 (being Laws 1984, Chapter 127, Section 338) is amended to read: "59A-18-8. CONSENT OF INSURED--LIFE, HEALTH INSURANCE.-- No life or health insurance contract upon an individual, except a contract of group life insurance or of group or blanket health insurance, shall be made or effectuated unless at the time of the making of the contract, such individual applies therefor or has consented thereto in writing, except in the following cases: A. a spouse or domestic partner may effectuate such insurance upon the other spouse or domestic partner; B. any person having an insurable interest in the life of a minor, or any person upon whom a minor is dependent for support and maintenance, may effectuate insurance upon the life of or pertaining to such minor; and C. family policies may be issued insuring any two [(2)] or more members of a family on an application signed by either parent, a stepparent, a guardian or by a husband or wife or a domestic partner." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 681 - Section 302. Section 59A-18-16 NMSA 1978 (being Laws 1984, Chapter 127, Section 345.1, as amended) is amended to read: "59A-18-16. CONTINUATION OF COVERAGE AND CONVERSION RIGHTS--ACCIDENT AND HEALTH INSURANCE POLICIES--NOTICE.-- Subject to the provisions of the Health Insurance Portability Act: A. every accident and health insurance policy that provides hospital, surgical and medical expense benefits and that is delivered, issued for delivery or renewed in this state on or after January 1, 1985 shall provide: (1) if an individual policy, covered family members the right to continue such policy as the named insured or through a conversion policy upon the death of the named insured or upon the divorce, annulment or dissolution of marriage or domestic partnership or legal separation of the spouse or domestic partner from the named insured; or (2) if a group policy: (a) each member or employee of the group insured the right to continue such coverage for a period of six months and thereafter through a conversion policy upon termination of membership or employment with the group insured; and (b) covered family members of an employee or member of the group insured the right to continue such underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 682 - coverage through a converted or separate policy upon the death of the member or employee of the group insured or upon the divorce, annulment or dissolution of marriage or domestic partnership or legal separation of the spouse or domestic partner from the member or employee of the group insured. Where a continuation of coverage or conversion is made in the name of the spouse or domestic partner of the named insured or the spouse or domestic partner of the employee or member of the group insured, such coverage may, at the option of the spouse or domestic partner, include coverage for dependent children for whom the spouse or domestic partner has responsibility for care and support; B. the right to a continuation of coverage or conversion pursuant to this section shall not exist with respect to any member or employee of the group insured or any covered family member in the event the coverage terminates for nonpayment of premium, nonrenewal of the policy or the expiration of the term for which the policy is issued. With respect to any member or employee of the group insured or any covered family member who is eligible for medicare or any other similar federal or state health insurance program, the right to a continuation of coverage or conversion shall be limited to coverage under a medicare supplement insurance policy as defined by the rules and regulations adopted by the superintendent; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 683 - C. coverage continued through the issuance of a converted or separate policy shall be provided at a reasonable, nondiscriminatory rate to the insured and shall consist of a form of coverage then being offered by the insurer as a conversion policy in the jurisdiction where the person exercising the conversion right resides that most nearly approximates the coverage of the policy from which conversion is exercised. Continued and converted coverages shall contain renewal provisions that are not less favorable to the insured than those contained in the policy from which the conversion is made, except that the person who exercises the right of conversion is entitled only to have included a right to coverage under a medicare supplement insurance policy, as defined by the rules and regulations adopted by the superintendent, after the attainment of the age of eligibility for medicare or any other similar federal or state health insurance program; D. at the time of inception of coverage, the insurer shall furnish to each covered family member who is eighteen years of age or over and to each employee or member of the group insured a statement setting forth in summary form the continuation of coverage and conversion provisions of the policy; E. the insurer shall notify in writing each employee or member, upon that employee's or member's termination of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 684 - employment or membership with the group insured, of the continuation and conversion provisions of the policy. The employer may give the written notice specified herein. The employer should notify the insurer of the employee's or member's change of status and last known address. Under no circumstances shall the employer have any civil liability under the conversion provisions of the Insurance Code; F. the eligible employee or member of the group insured or covered family member exercising the continuation or conversion right shall notify the employer or insurer and make payment of the applicable premium within thirty days following the date of the notification given by the insurer pursuant to Subsection E of this section. There shall be no lapse of coverage during the period in which conversion is available; G. coverage shall be provided through continuation or conversion without additional evidence of insurability and shall not impose any preexisting condition, limitations or other contractual time limitations other than those remaining unexpired under the policy or contract from which continuation or conversion is exercised; H. benefits otherwise payable under a converted or separate policy may be reduced so they are not, during the first policy year of the converted or separate policy, in excess of those that would have been payable under the policy underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 685 - from which conversion is exercised. Benefits, if any, otherwise payable under a converted or separate policy are not payable for a loss claimed under the policy from which conversion is exercised; and I. any probationary or waiting period set forth in the converted or separate policy is deemed to commence on the effective date of the applicant's coverage under the original policy." Section 303. Section 59A-20-15 NMSA 1978 (being Laws 1984, Chapter 127, Section 380) is amended to read: "59A-20-15. BENEFICIARY, INDUSTRIAL POLICIES.--An industrial life insurance policy shall have the name of the beneficiary designated thereon with a reservation of the right to change the beneficiary after the issuance of the policy. The policy may also provide that no designation or change of beneficiary shall be binding on the insurer until endorsed on the policy by the insurer, and that the insurer may refuse to endorse the name of any proposed beneficiary who does not appear to the insurer to have an insurable interest in the life of the insured. The policy may also provide that if the beneficiary designated in the policy does not make a claim under the policy or does not surrender the policy with due proof of death within the period stated in the policy, which shall not be less than thirty [(30)] days after the death of the insured, or if the beneficiary is the estate of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 686 - insured, or is a minor, or dies before the insured, or is not legally competent to give a valid release, then the insurer may make any payment thereunder to the executor or administrator of the insured, or to any relative of the insured by blood or legal adoption or connection by marriage or domestic partnership, or to any person appearing to the insurer to be equitably entitled thereto by reason of having been named beneficiary or by reason of having incurred expense for the maintenance, medical attention or burial of the insured. The policy may also include a similar provision applicable to any other payment due under the policy." Section 304. Section 59A-20-31 NMSA 1978 (being Laws 1984, Chapter 127, Section 396) is amended to read: "59A-20-31. STANDARD NONFORFEITURE LAW--LIFE INSURANCE.-- A. In the case of policies issued on and after the operative date of this section, as defined in Subsection K of this section, no policy of life insurance, except as stated in Subsection J of this section, shall be delivered or issued for delivery in this state unless it shall contain in substance the following provisions, or corresponding provisions [which] that in the opinion of the superintendent are at least as favorable to the defaulting or surrendering policyholder as are the minimum requirements hereinafter specified and are essentially in compliance with Subsection I of this section: (1) that, in the event of default in any premium underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 687 - payment the insurer will grant, upon proper request not later than sixty days after the due date of the premium in default, a paid-up nonforfeiture benefit on a plan stipulated in the policy, effective as of such due date, of such amount as may be hereinafter specified. In lieu of such stipulated paid-up nonforfeiture benefit, the insurer may substitute, upon proper request not later than sixty days after the due date of the premium in default, an actuarially equivalent alternative paid-up nonforfeiture benefit [which] that provides a greater amount or longer period of death benefits or, if applicable, a greater amount or earlier payment of endowment benefits; (2) that, upon surrender of the policy within sixty days after the due date of any premium payment in default after premiums have been paid for at least three full years in the case of ordinary insurance or five full years in the case of industrial insurance, the insurer will pay, in lieu of any paid-up nonforfeiture benefit, a cash surrender value of such amount as may be hereinafter specified; (3) that a specified paid-up nonforfeiture benefit shall become effective as specified in the policy unless the person entitled to make such election elects another available option not later than sixty days after the due date of the premium in default; (4) that, if the policy shall have become paid- up by completion of all premium payments or if it is continued underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 688 - under any paid-up nonforfeiture benefit [which] that became effective on or after the third policy anniversary in the case of ordinary insurance or the fifth policy anniversary in the case of industrial insurance, the insurer will pay, upon surrender of the policy within thirty days after any policy anniversary, a cash surrender value of such amount as may be hereinafter specified; (5) in the case of policies [which] that cause on a basis guaranteed in the policy unscheduled changes in benefits or premiums, or [which] that provide an option for changes in benefits or premiums other than a change to a new policy, a statement of the mortality table, interest rate and method used in calculating cash surrender values and the paid- up nonforfeiture benefits available under the policy. In the case of all other policies, a statement of the mortality table and interest rate used in calculating the cash surrender values and the paid-up nonforfeiture benefits available under the policy, together with a table showing the cash surrender value, if any, and paid-up nonforfeiture benefit, if any, available under the policy on each policy anniversary either during the first twenty policy years or during the term of the policy, whichever is shorter, such values and benefits to be calculated upon the assumption that there are no dividends or paid-up additions credited to the policy and that there is no indebtedness to the insurer on the policy; and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 689 - (6) a statement that the cash surrender values and the paid-up nonforfeiture benefits available under the policy are not less than the minimum values and benefits required by or pursuant to the insurance law of the state in which the policy is delivered; an explanation of the manner in which the cash surrender values and the paid-up nonforfeiture benefits are altered by the existence of any paid-up additions credited to the policy or any indebtedness to the insurer on the policy; if a detailed statement of the method of computation of the values and benefits shown in the policy is not stated therein, a statement that such method of computation has been filed with the insurance supervisory official of the state in which the policy is delivered; and a statement of the method to be used in calculating the cash surrender value and paid-up nonforfeiture benefit available under the policy on any policy anniversary beyond the last anniversary for which such values and benefits are consecutively shown in the policy. Any of the provisions in this subsection or portions thereof not applicable by reason of the plan of insurance may, to the extent inapplicable, be omitted from the policy. The insurer shall reserve the right to defer the payment of any cash surrender value for a period of six months after demand therefor with surrender of the policy. B. Any cash surrender value available under the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 690 - policy in the event of default in a premium payment due on any policy anniversary, whether or not required by Subsection A of this section, shall be an amount not less than the excess, if any, of the present value, on such anniversary, of the future guaranteed benefits [which] that would have been provided for by the policy, including any existing paid-up additions, if there had been no default, over the sum of: (1) the then present value of the adjusted premiums as defined in Subsections D, E and F of this section, corresponding to premiums [which] that would have fallen due on or after such anniversary; and (2) the amount of any indebtedness to the insurer on the policy. Provided, however, that for any policy issued on or after the operative date of Subsection F of this section, as defined therein, [which] that provides supplemental life insurance or annuity benefits at the option of the insured and for an identifiable additional premium by rider or supplemental policy provision, the cash surrender value referred to in the first paragraph of this subsection shall be an amount not less than the sum of the cash surrender value as defined in such paragraph for an otherwise similar policy issued at the same age without such rider or supplemental policy provision and the cash surrender value as defined in such paragraph for a policy [which] that provides only the benefits otherwise provided by such rider or supplemental policy provision. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 691 - Provided, further, that for any family policy issued on or after the operative date of Subsection F of this section as defined therein, [which] that defines a primary insured and provides term insurance on the life of the spouse or domestic partner of the primary insured expiring before the spouse's or domestic partner's age seventy-one, the cash surrender value referred to in the first paragraph of this subsection shall be an amount not less than the sum of the cash surrender value as defined in such paragraph for an otherwise similar policy issued at the same age without such term insurance on the life of the spouse or domestic partner and the cash surrender value as defined in such paragraph for a policy [which] that provides only the benefits otherwise provided by such term insurance on the life of the spouse or domestic partner. Any cash surrender value available within thirty days after any policy anniversary under any policy paid up by completion of all premium payments or any policy continued under any paid-up nonforfeiture benefit, whether or not required by Subsection A of this section, shall be an amount not less than the present value, on such anniversary, of the future guaranteed benefits provided for by the policy, including any existing paid-up additions, decreased by any indebtedness to the insurer on the policy. C. Any paid-up nonforfeiture benefit available under the policy in the event of default in a premium payment due on underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 692 - any policy anniversary shall be such that its present value as of such anniversary shall be at least equal to the cash surrender value then provided for by the policy or, if none is provided for, that cash surrender value [which] that would have been required by this section in the absence of the condition that premiums shall have been paid for at least a specified period. D. This subsection shall not apply to policies issued on or after the operative date of Subsection F of this section. Except as provided in Paragraph (2) of this subsection, the adjusted premiums for any policy shall be calculated on an annual basis and shall be such uniform percentage of the respective premiums specified in the policy for each policy year, excluding any extra premiums charged because of impairments or special hazards, that the present value, at the date of issue of the policy, of all such adjusted premiums shall be equal to the sum of (a) the then present value of the future guaranteed benefits provided for by the policy; (b) two percent of the amount of insurance, if the insurance be uniform in amount, or of the equivalent uniform amount, as hereinafter defined, if the amount of insurance varies with duration of the policy; (c) forty percent of the adjusted premium for the first policy year; (d) twenty-five percent of either the adjusted premium for the first policy year or the adjusted premium for a whole life underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 693 - policy of the same uniform or equivalent uniform amount with uniform premiums for the whole of life issued at the same age for the same amount of insurance, whichever is less. Provided, however, that in applying the percentages specified in (c) and (d) [above], no adjusted premium shall be deemed to exceed four percent of the amount of insurance or uniform amount equivalent thereto. The date of issue of a policy for the purpose of this subsection shall be the date as of which the rated age of the insured is determined. (1) In the case of a policy providing an amount of insurance varying with duration of the policy, the equivalent uniform amount thereof for the purpose of this subsection shall be deemed to be the uniform amount of insurance provided by an otherwise similar policy, containing the same endowment benefit or benefits, if any, issued at the same age and for the same term, the amount of which does not vary with duration and the benefits under which have the same present value at the date of issue as the benefits under the policy; provided, however, that in the case of a policy providing a varying amount of insurance issued on the life of a child under age ten, the equivalent uniform amount may be computed as though the amount of insurance provided by the policy prior to the attainment of age ten were the amount provided by such policy at age ten. (2) The adjusted premiums for any policy underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 694 - providing term insurance benefits by rider or supplemental policy provision shall be equal to (1) the adjusted premiums for an otherwise similar policy issued at the same age without such term insurance benefits, increased, during the period for which premiums for such term insurance benefits are payable by (2) the adjusted premiums for such term insurance, the foregoing items (1) and (2) being calculated separately and as specified in the first two paragraphs (the first paragraphs and Paragraph (1)) of this subsection except that, for the purposes of (b), (c) and (d) of the first such paragraph, the amount of insurance or equivalent uniform amount of insurance used in the calculation of the adjusted premiums referred to in (2) shall be equal to the excess of the corresponding amount determined for the entire policy over the amount used in the calculation of the adjusted premiums in (1). (3) Except as otherwise provided in Paragraph (4) of this subsection and Subsection E of this section, all adjusted premiums and present values referred to in this section shall for all policies of ordinary insurance be calculated on the basis of the national association of insurance commissioners 1941 standard ordinary mortality table, provided that for any category of ordinary insurance issued on female risks, adjusted premiums and present values may be calculated according to an age not more than three years younger than the actual age of the insured, and such underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 695 - calculations for all policies of industrial insurance shall be made on the basis of the 1941 standard industrial mortality table. All calculations shall be made on the basis of the rate of interest, not exceeding three and one-half percent per annum, specified in the policy for calculating cash surrender values and paid-up nonforfeiture benefits. Provided, however, that in calculating the present value of any paid-up term insurance with accompanying pure endowment, if any, offered as a nonforfeiture benefit, the rates of mortality assumed may be not more than one hundred thirty percent of the rates of mortality according to such applicable table. Provided, further, that for insurance issued on a substandard basis, the calculation of any such adjusted premiums and present values may be based on such other table of mortality as may be specified by the insurer and approved by the superintendent. (4) This paragraph shall not apply to ordinary policies issued on or after the operative date of Subsection F of this section. In the case of ordinary policies issued on or after the operative date of this paragraph as defined herein, all adjusted premiums and present values referred to in this section shall be calculated on the basis of the commissioners 1958 standard ordinary mortality table and the rate of interest specified in the policy for calculating cash surrender values and paid-up nonforfeiture benefits; provided that such rate of interest shall not exceed three and one-half underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 696 - percent a year, except that a rate of interest not exceeding four percent a year may be used for policies issued on or after July 1, 1973, and prior to July 1, 1977 and a rate of interest not exceeding five and one-half percent per annum may be used for policies issued on or after July 1, l977, except that for any single premium whole life or endowment insurance policy a rate of interest not exceeding six and one-half percent per annum may be used, and provided that for any category of ordinary insurance issued on female risks, adjusted premiums and present values may be calculated according to an age not more than six years younger than the actual age of the insured. Provided, however, that in calculating the present value of any paid-up term insurance with accompanying pure endowment, if any, offered as a nonforfeiture benefit, the rates of mortality assumed may be not more than those shown in the commissioners 1958 extended term insurance table. Provided, further, that for insurance issued on a substandard basis, the calculation of any such adjusted premiums and present values may be based on such other table of mortality as may be specified by the insurer and approved by the superintendent. After June 9, 1961, any insurer may file with the superintendent a written notice of its election to comply with the provisions of Paragraph (4) of this subsection after a specified date before January 1, 1966. After the filing of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 697 - such notice, then upon such specified date (which shall be the operative date of this subsection for such insurer), this subsection shall become operative with respect to the ordinary policies thereafter issued by such insurer. If an insurer makes no such election, the operative date of this subsection for such insurer shall be January 1, 1966. E. This subsection shall not apply to industrial policies issued on or after the operative date of Subsection F of this section. In the case of industrial policies issued on or after the operative date of this subsection as defined herein, all adjusted premiums and present values referred to in this section shall be calculated on the bases of the commissioners 1961 standard industrial mortality table and the rate of interest specified in the policy for calculating cash surrender values and paid-up nonforfeiture benefits; provided that such rate of interest shall not exceed three and one-half percent a year except that a rate of interest not exceeding four percent a year may be used for policies issued on or after July 1, l973 and prior to July 1, 1977 and a rate of interest not exceeding five and one-half percent per annum may be used for policies issued on or after July 1, 1977, except that, for any single premium whole life or endowment insurance policy, a rate of interest not exceeding six and one-half percent per annum may be used. Provided, however, that in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 698 - calculating the present value of any paid-up term insurance with accompanying pure endowment, if any, offered as a nonforfeiture benefit, the rates of mortality assumed may be not more than those shown in the commissioners 1961 industrial extended term insurance table. Provided, further, that for insurance issued on a substandard basis, the calculation of any such adjusted premiums and present values may be based on such other table of mortality as may be specified by the insurer and approved by the superintendent. After June 7, 1963, any insurer may file with the superintendent a written notice of its election to comply with the provisions of this subsection after a specified date before January 1, 1968. After the filing of such notice, then upon such specified date (which shall be the operative date of this subsection for such insurer), this subsection shall become operative with respect to the industrial policies thereafter issued by such insurer. If an insurer makes no such election, the operative date of this subsection for such insurer shall be January 1, 1968. F. This subsection shall apply to all policies issued on or after the operative date of this subsection. Except as provided in Paragraph (6) of this subsection, the adjusted premiums for any policy shall be calculated on an annual basis and shall be such uniform percentage of the respective premiums specified in the policy for each policy underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 699 - year, excluding amounts payable as extra premiums to cover impairment or special hazards and also excluding any uniform annual contract charge or policy fee specified in the policy in a statement of the method to be used in calculating the cash surrender values and paid-up nonforfeiture benefits, that the present value, at the date of issue of the policy, of all adjusted premiums shall be equal to the sum of the then present value of the future guaranteed benefits provided for by the policy; one percent of either the amount of insurance, if the insurance be uniform in amount, or the average amount of insurance at the beginning of each of the first ten policy years; and one hundred [and] twenty-five percent of the nonforfeiture net level premium as hereinafter defined. Provided, however, that, in applying the last percentage specified above, no nonforfeiture net level premium shall be deemed to exceed four percent of either the amount of insurance, if the insurance be uniform in amount, or the average amount of insurance at the beginning of each of the first ten policy years. The date of issue of a policy for the purpose of this subsection shall be the date as of which the rated age of the insured is determined; and (1) the nonforfeiture net level premium shall be equal to the present value, at the date of issue of the policy, of the guaranteed benefits provided for by the policy divided by the present value, at the date of issue of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 700 - policy, of an annuity of one per annum payable on the date of issue of the policy and on each anniversary of such policy on which a premium falls due; (2) in the case of policies [which] that cause on a basis guaranteed in the policy unscheduled changes in benefits or premiums, or [which] that provide an option for changes in benefits or premiums other than a change to a new policy, the adjusted premiums and present values shall initially be calculated on the assumption that future benefits and premiums do not change from those stipulated at the date of issue of the policy. At the time of any such change in the benefits or premiums, the future adjusted premiums, nonforfeiture net level premiums and present values shall be recalculated on the assumption that future benefits and premiums do not change from those stipulated by the policy immediately after the change; (3) except as otherwise provided in Paragraph (6) of this subsection, the recalculated future adjusted premiums for any such policy shall be such uniform percentage of the respective future premiums specified in the policy for each policy year, excluding amounts payable as extra premiums to cover impairments and special hazards, and also excluding any uniform annual contract charge or policy fee specified in the policy in a statement of the method to be used in calculating the cash surrender values and paid-up underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 701 - nonforfeiture benefits, that the present value, at the time of change to the newly defined benefits or premiums, of all such future adjusted premiums shall be equal to the excess of the sum of the then present value of the then future guaranteed benefits provided for by the policy and the additional expense allowance, if any, over the then cash surrender value, if any, or present value of any paid-up nonforfeiture benefit under the policy; (4) the additional expense allowance, at the time of the change to the newly defined benefits or premiums, shall be the sum of one percent of the excess, if positive, of the average amount of insurance at the beginning of each of the first ten policy years subsequent to the change over the average amount of insurance prior to the change at the beginning of each of the first ten policy years subsequent to the time of the most recent previous change, or, if there has been no previous change, the date of issue of the policy; and one hundred twenty-five percent of the increase, if positive, in the nonforfeiture net level premium; (5) the recalculated nonforfeiture net level premium shall be equal to the result obtained by dividing (a) by (b) where: (a) equals the sum of: (1) the nonforfeiture net level premium applicable prior to the change times the present value of an annuity of one per annum payable underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 702 - on each anniversary of the policy on or subsequent to the date of the change on which a premium would have fallen due had the change not occurred; and (2) the present value of the increase in future guaranteed benefits provided for by the policy; and (b) equals the present value of an annuity of one per annum payable on each anniversary of the policy on or subsequent to the date of change on which a premium falls due; (6) notwithstanding any other provisions of this subsection to the contrary, in the case of a policy issued on a substandard basis [which] that provides reduced graded amounts of insurance so that, in each policy year, such policy has the same tabular mortality cost as an otherwise similar policy issued on the standard basis [which] that provides higher uniform amounts of insurance, adjusted premiums and present values for such substandard policy may be calculated as if it were issued to provide such higher uniform amounts of insurance on the standard basis; (7) all adjusted premiums and present values referred to in this section shall for all policies of ordinary insurance be calculated on the basis of the commissioners 1980 standard ordinary mortality table or, at the election of the insurer for any one or more specified plans of life insurance, the commissioners 1980 standard ordinary mortality table with ten-year select mortality factors; shall for all policies of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 703 - industrial insurance be calculated on the basis of the commissioners 1961 standard industrial mortality table; and shall for all policies issued in a particular calendar year be calculated on the basis of a rate of interest not exceeding the nonforfeiture interest rate as defined in this subsection, for policies issued in that calendar year. Provided, however, that: (a) at the option of the insurer, calculations for all policies issued in a particular calendar year may be made on the basis of a rate of interest not exceeding the nonforfeiture interest rate, as defined in this subsection, for policies issued in the immediately preceding calendar year; (b) under any paid-up nonforfeiture benefit, including any paid-up dividend additions, any cash surrender value available, whether or not required by Subsection A of this section, shall be calculated on the basis of the mortality table and rate of interest used in determining the amount of such paid-up nonforfeiture benefit and paid-up dividend additions, if any; (c) an insurer may calculate the amount of any guaranteed paid-up nonforfeiture benefit, including any paid-up additions under the policy, on the basis of an interest rate no lower than that specified in the policy for calculating cash surrender values; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 704 - (d) in calculating the present value of any paid-up term insurance with accompanying pure endowment, if any, offered as a nonforfeiture benefit, the rates of mortality assumed may be not more than those shown in the commissioners 1980 extended term insurance table for policies of ordinary insurance and not more than the commissioners 1961 industrial extended term insurance table for policies of industrial insurance; (e) for insurance issued on a substandard basis, the calculation of any such adjusted premiums and present values may be based on appropriate modifications of the aforementioned tables; (f) any ordinary mortality tables, adopted after 1980 by the national association of insurance commissioners, that are approved by regulation promulgated by the superintendent for use in determining the minimum nonforfeiture standard may be substituted for the commissioners 1980 standard ordinary mortality table with or without ten-year select mortality factors or for the commissioners 1980 extended term insurance table; and (g) any industrial mortality tables, adopted after 1980 by the national association of insurance commissioners, that are approved by regulation promulgated by the superintendent for use in determining the minimum nonforfeiture standard may be substituted for the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 705 - commissioners 1961 standard industrial mortality table or the commissioners 1961 industrial extended term insurance table; (8) the nonforfeiture interest rate per annum for any policy issued in a particular calendar year shall be equal to one hundred twenty-five percent of the calendar year statutory valuation interest rate for such policy as defined in the Standard Valuation Law (Section [122 of the Insurance Code] 59A-8-5 NMSA 1978), rounded to the nearest one-quarter of one percent; (9) notwithstanding any other provision in the laws relating to insurance to the contrary, any refiling of nonforfeiture values or their methods of computation for any previously approved policy form [which] that involves only a change in the interest rate or mortality table used to compute nonforfeiture values shall not require refiling of any other provisions of that policy form; and (10) after the effective date of this subsection, any insurer may file with the superintendent a written notice of its election to comply with the [provision] provisions of this subsection after a specified date before January 1, 1989, which shall be the operative date of this subsection for such insurer. If an insurer makes no such election, the operative date of this subsection for such insurer shall be January 1, 1989. G. In the case of any plan of life insurance [which] underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 706 - that provides for future premium determination, the amounts of which are to be determined by the insurer based on the then estimates of future experience, or in the case of any plan of life insurance [which] that is of such a nature that minimum values cannot be determined by the methods described in Subsection A, B, C, D, E or F of this section, then: (1) the superintendent must be satisfied that the benefits provided under the plan are substantially as favorable to policyholders and insureds as the minimum benefits otherwise required by Subsection A, B, C, D, E or F of this section; (2) the superintendent must be satisfied that the benefits and the pattern of premiums of that plan are not such as to mislead prospective policyholders or insureds; and (3) the cash surrender values and paid-up nonforfeiture benefits provided by such plan must not be less than the minimum values and benefits required for the plan computed by a method consistent with the principles of this section, as determined by regulations promulgated by the superintendent. H. Any cash surrender value and any paid-up nonforfeiture benefit, available under the policy in the event of default in a premium payment due at any time other than on the policy anniversary, shall be calculated with allowance for the lapse of time and the payment of fractional premiums underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 707 - beyond the last preceding policy anniversary. All values referred to in Subsections B, C, D, E and F of this section may be calculated upon the assumption that any death benefit is payable at the end of the policy year of death. The net value of any paid-up additions, other than paid-up term additions, shall be not less than the amounts used to provide such additions. Notwithstanding the provisions of Subsection B of this section, additional benefits payable (a) in the event of death or dismemberment by accident or accidental means; (b) in the event of total and permanent disability; (c) as reversionary annuity or deferred reversionary annuity benefits; (d) as term insurance benefits provided by a rider or supplemental policy provision to which, if issued as a separate policy, this section would not apply; (e) as term insurance on the life of a child or on the lives of children provided in a policy on the life of a parent of the child, if such term insurance expires before the child's age is twenty- six, is uniform in amount after the child's age is one and has not become paid up by reason of the death of a parent of the child; and (f) as other policy benefits additional to life insurance and endowment benefits, and premiums for all such additional benefits, shall be disregarded in ascertaining cash surrender values and nonforfeiture benefits required by this section, and no such additional benefits shall be required to be included in any paid-up nonforfeiture benefits. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 708 - I. This subsection, in addition to all other applicable sections of this law, shall apply to all policies issued on or after January 1, 1985. Any cash surrender value available under the policy in the event of default in a premium payment due on any policy anniversary shall be in an amount [which] that does not differ by more than two-tenths of one percent of either the amount of insurance, if the insurance be uniform in amount, or the average amount of insurance at the beginning of each of the first ten policy years, from the sum of (a) the greater of zero and the basic cash value hereinafter specified; and (b) the present value of any existing paid-up additions less the amount of any indebtedness to the insurer under the policy. The basic cash value shall be equal to the present value, on such anniversary, of the future guaranteed benefits [which] that would have been provided for by the policy, excluding any existing paid-up additions and before deduction of any indebtedness to the insurer, if there had been no default, less the then present value of the nonforfeiture factors, as hereinafter defined, corresponding to premiums [which] that would have fallen due on and after such anniversary. Provided, however, that the effects on the basic cash value of supplemental life insurance or annuity benefits or of family coverage, as described in Subsection B or D of this section, whichever is applicable, shall be the same as are the effects underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 709 - specified therein. The nonforfeiture factor for each policy year shall be an amount equal to a percentage of the adjusted premium for the policy year, as defined in Subsection D or F of this section, whichever is applicable. Except as is required by the next succeeding sentence of this paragraph, such percentage: (1) must be the same percentage for each policy year between the second policy anniversary and the later of the fifth policy anniversary and the first policy anniversary at which there is available under the policy a cash surrender value in an amount, before including any paid-up additions and before deducting any indebtedness, of at least two-tenths of one percent of either the amount of insurance, if the insurance be uniform in amount, or the average amount of insurance at the beginning of each of the first ten policy years; and (2) must be such that no percentage after the later of the two policy anniversaries specified in Paragraph (1) of this subsection may apply to fewer than five consecutive policy years. Provided, that no basic cash value may be less than the value [which] that would be obtained if the adjusted premiums for the policy, as defined in Subsection D or F of this section, whichever is applicable, were substituted for the nonforfeiture factors in the calculation of the basic cash underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 710 - value. All adjusted premiums and present values referred to in this subsection shall for a particular policy be calculated on the same mortality and interest bases as are used in demonstrating the policy's compliance with the other subsections of this section. The cash surrender values referred to in this subsection shall include any endowment benefits provided for by the policy. Any cash surrender value available other than in the event of default in a premium payment due on a policy anniversary, and the amount of any paid-up nonforfeiture benefit available under the policy in the event of default in a premium payment shall be determined in manners consistent with the manners specified for determining the analogous minimum amounts in Subsections A, B, C, F and H of this section. The amounts of any cash surrender values and of any paid-up nonforfeiture benefits granted in connection with additional benefits such as those listed as items (a) through (d) in Subsection H of this section shall conform with the principles of this subsection. J. This section shall not apply to any reinsurance, group insurance, pure endowment, annuity or reversionary annuity contract, nor to any term policy of uniform amount [which] that provides no guaranteed nonforfeiture or endowment benefits, or renewal thereof, of twenty years or less expiring underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 711 - before age seventy-one for which uniform premiums are payable during the entire term of the policy, nor to any term policy of decreasing amount, [which] that provides no guaranteed nonforfeiture or endowment benefits, on which each adjusted premium, calculated as specified in Subsections D, E and F of this section, is less than the adjusted premium so calculated, on a term policy of uniform amount, or renewal thereof, [which] that provides no guaranteed nonforfeiture or endowment benefits, issued at the same age and for the same initial amount of insurance and for a term of twenty years or less expiring before age seventy-one, for which uniform premiums are payable during the entire term of the policy, nor to any policy, [which] that provides no guaranteed nonforfeiture or endowment benefits, for which no cash surrender value, if any, or present value of any paid-up nonforfeiture benefit, at the beginning of any policy year, calculated as specified in Subsections B, C, D, E and F of this section, exceeds two and one-half percent of the amount of insurance at the beginning of the same policy year; nor to any policy [which] that shall be delivered outside this state through an agent or other representative of the insurer issuing the policy. For purposes of determining the applicability of this section, the age at expiry for a joint term life insurance policy shall be the age of expiry of the oldest life. K. After the effective date of this act, any underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 712 - insurer may file with the superintendent a written notice of its election to comply with the provisions of this section after a specified date before January 1, 1952. After the filing of such notice, then upon such specified date (which shall be the operative date for such insurer), this section shall become operative with respect to policies thereafter issued by such insurer. If an insurer makes no such election, the operative date of this section for such insurer shall be January 1, 1952." Section 305. Section 59A-21-2 NMSA 1978 (being Laws 1984, Chapter 127, Section 400) is amended to read: "59A-21-2. GROUP CONTRACTS MUST MEET REQUIREMENTS.-- A. No life insurance policy shall be delivered or issued for delivery in this state insuring the lives of more than one individual unless to a group defined in [this article] Chapter 59A, Article 21 NMSA 1978 and otherwise in compliance with [this] that article. B. Subsection A [hereof] of this section does not apply to life insurance policies insuring only individuals: (1) related by blood, marriage, domestic partnership or legal adoption; [or] (2) having a common interest through ownership of a business enterprise, or a substantial legal interest or equity therein, and who are actively engaged in management thereof; or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 713 - (3) otherwise having an insurable interest in each other's lives." Section 306. Section 59A-21-10 NMSA 1978 (being Laws 1984, Chapter 127, Section 407, as amended) is amended to read: "59A-21-10. DEPENDENTS' COVERAGE.--Insurance under any group life insurance policy issued pursuant to Sections 59A-21-4 and 59A-21-6 through 59A-21-8 NMSA 1978 may be extended to insure the dependents, or any class or classes thereof, of each employee or member who so elects. The term "dependent" means the spouse or domestic partner of the employee or member and an employee's or member's minor child, including a child beyond the age of majority up to a maximum of twenty-five years of age while attending an educational institution, and such other children of the employee or member as provided within the group life insurance policy. The premiums for the insurance on such dependents may be paid by the group policyholder or by the employee or member or by the group policyholder and the employee or member jointly." Section 307. Section 59A-22-2 NMSA 1978 (being Laws 1984, Chapter 127, Section 423) is amended to read: "59A-22-2. FORM AND CONTENT OF POLICY.--No policy of individual health insurance shall be delivered or issued for delivery in this state unless: A. the entire money and other considerations underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 714 - therefor are expressed therein; [and] B. the time at which insurance takes effect and terminates is expressed therein; [and] C. it purports to insure only one person, except as provided in Chapter 59A, Article 23 [of the Insurance Code] NMSA 1978, and except that a policy or contract may be issued upon application of the head of a family, who shall be deemed the policyholder, covering members of any one family, including husband, wife, domestic partner, dependent children or any children under the age of nineteen [(19)] and other dependents living with the family; [and] D. every printed portion of the text matter and of any endorsements or attached papers shall be printed in uniform type of which the face shall be not less than ten [(10)] point (the "text" shall include all printed matter except the name and address of the insurer, name and title of the policy, captions, subcaptions and form numbers), but notwithstanding any provision of this law, the superintendent shall not disapprove any such policy on the ground that every printed portion of its text matter or of any endorsement or attached paper is not printed in uniform type if it shall be shown that the type used is required to conform to the laws of another state in which the insurer is authorized; [and] E. the exceptions and reductions of indemnity are adequately captioned and clearly set forth in the policy or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 715 - contract; [and] F. each such form, including riders and endorsements, shall be identified by a form number in the lower left-hand corner of the first page thereof; and G. if any policy is issued by an insurer domiciled in this state for delivery to a person residing in another state, and if the official having responsibility for the administration of insurance laws of such other state shall have advised the superintendent that any such policy is not subject to approval or disapproval by such official, the superintendent may by ruling require that such policy meet the standards set forth in Sections [424 through 446 of this article] 59A-22-3 through 59A-22-25 NMSA 1978." Section 308. Section 59A-22-12 NMSA 1978 (being Laws 1984, Chapter 127, Section 433) is amended to read: "59A-22-12. PAYMENT OF CLAIMS.-- A. There shall be a provision as follows: "Indemnity for loss of life will be payable in accordance with the beneficiary designation and the provisions respecting such payment, which may be prescribed herein and effective at the time of payment. If no such designation or provision is then effective, such indemnity shall be payable to the estate of the insured. Any other accrued indemnities unpaid at the insured's death may, at the option of the insurer, be paid either to such beneficiary or to such estate. All other underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 716 - indemnities will be payable to the insured." B. The following provisions, or either of them, may be included with the foregoing provision at the option of the insurance company: "If any indemnity of this policy shall be payable to the estate of the insured, or to an insured or beneficiary who is a minor or otherwise not competent to give valid release, the insurance company may pay such indemnity, up to an amount not exceeding $..... (insert an amount which shall not exceed one thousand dollars ($1,000)), to any relative by blood or connection by marriage or domestic partnership of the insured or beneficiary who is deemed by the insurance company to be equitably entitled thereto. Any payment made by the insurance company in good faith pursuant to this provision shall fully discharge the insurance company to the extent of such payment." "Subject to any written direction of the insured in the application or otherwise all or a portion of any indemnities provided by this policy on account of hospital, nursing, medical or surgical services may, at the insurance company's option and unless the insured requests otherwise in writing not later than the time of filing proofs of such loss, be paid directly to the hospital or person rendering such services; but it is not required that the service be rendered by a particular hospital or person."" underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 717 - Section 309. Section 59A-22-31 NMSA 1978 (being Laws 1984, Chapter 127, Section 452) is amended to read: "59A-22-31. INDUSTRIAL HEALTH INSURANCE.-- A. The term "industrial health insurance" as used herein means sickness and accident insurance under individual policies for which the premium is payable weekly, and includes any such policy [which] that covers sickness only or accident only. B. Any insurer authorized to write health insurance in this state shall have the power to issue industrial health policies. C. No policy of industrial health insurance may be delivered or issued for delivery in the state unless it has printed thereon the words "industrial policy". D. Each such policy shall be subject to the provisions of [this article] Chapter 59A, Article 22 NMSA 1978, except that no such policy shall be required to contain any of the policy provisions set forth in Sections [424 through 446, inclusive, of this article] 59A-22-3 through 59A-22-25 NMSA 1978, other than the provisions relating to the presence of a preexisting disease or physical condition; provided, however, that no such policy shall contain any provision relative to notice or proof of loss, or the time for paying benefits, or the time within which suit may be brought upon the policy, [which] that in the opinion of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 718 - superintendent is less favorable to the insured than would be permitted by such policy provisions; and provided further, that such policy may contain a provision that upon proper written request, a named beneficiary shall be designated in or by endorsement on the policy to receive the proceeds thereof on the death of the insured, and there shall be reserved to the insured the power to change the beneficiary at any time by written notice to the insurer at its home office, accompanied by the policy for endorsement of the change thereon by the insurer; the insurer shall have the right to refuse to designate a beneficiary if evidence satisfactory to the insurer of such beneficiary's insurable interest in the life of the insured is not furnished on request. Any such policy may provide in substance that any payment thereunder may be made to the insured or the insured's estate or to any relative by blood or connection by marriage or domestic partnership of the insured, or, to the extent of such portion of any payment under the policy as may reasonably appear to the insurer to be due to such person, to any other person equitably entitled thereto by reason of having incurred expense occasioned by the maintenance or illness or burial of the insured; provided that, if the policy shall be in force at the death of the insured, the proceeds thereof shall be payable to the named beneficiary if living, but upon the expiration of fifteen [(15)] days after the death of the insured, unless proof of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 719 - the claim in the manner and form required by the policy, accompanied by the policy for surrender, has theretofore been made by such beneficiary, the insurer may pay to any other person permitted by the policy." Section 310. Section 59A-23B-3 NMSA 1978 (being Laws 1991, Chapter 111, Section 3, as amended) is amended to read: "59A-23B-3. POLICY OR PLAN--DEFINITION--CRITERIA.-- A. For purposes of the Minimum Healthcare Protection Act, "policy or plan" means a healthcare benefit policy or healthcare benefit plan that the insurer, fraternal benefit society, health maintenance organization or nonprofit healthcare plan chooses to offer to individuals, families or groups of fewer than twenty members formed for purposes other than obtaining insurance coverage and that meets the requirements of Subsection B of this section. For purposes of the Minimum Healthcare Protection Act, "policy or plan" shall not mean a healthcare policy or healthcare benefit plan that an insurer, health maintenance organization, fraternal benefit society or nonprofit healthcare plan chooses to offer outside the authority of the Minimum Healthcare Protection Act. B. A policy or plan shall meet the following criteria: (1) the individual, family or group obtaining coverage under the policy or plan has been without healthcare insurance, a health services plan or employer-sponsored underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 720 - healthcare coverage for the six-month period immediately preceding the effective date of its coverage under a policy or plan, provided that the six-month period shall not apply to: (a) a group that has been in existence for less than six months and has been without healthcare coverage since the formation of the group; (b) an employee whose healthcare coverage has been terminated by an employer; (c) a dependent who no longer qualifies as a dependent under the terms of the contract; or (d) an individual and an individual's dependents who no longer have healthcare coverage as a result of termination or change in employment of the individual or by reason of death of a spouse or domestic partner or dissolution of a marriage or domestic partnership, notwithstanding rights the individual or individual's dependents may have to continue healthcare coverage on a self-pay basis pursuant to the provisions of the federal Consolidated Omnibus Budget Reconciliation Act of 1985; (2) the policy or plan includes the following managed care provisions to control costs: (a) an exclusion for services that are not medically necessary or are not covered by preventive health services; and (b) a procedure for preauthorization of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 721 - elective hospital admissions by the insurer, fraternal benefit society, health maintenance organization or nonprofit healthcare plan; and (3) subject to a maximum limit on the cost of healthcare services covered in any calendar year of not less than fifty thousand dollars ($50,000) and, effective for policies written or renewed on or after January 1, 2009, of not less than one hundred thousand dollars ($100,000), adjusted for changes not to exceed the medical price index component of the federal department of labor's consumer price index at intervals and in a manner established by rule pursuant to the Minimum Healthcare Protection Act, the policy or plan provides the following minimum healthcare services to covered individuals: (a) inpatient hospitalization coverage or home care coverage in lieu of hospitalization or a combination of both, not to exceed twenty-five days of coverage inclusive of any deductibles, co-payments or co-insurance; provided that a period of inpatient hospitalization coverage shall precede any home care coverage; (b) prenatal care, including a minimum of one prenatal office visit per month during the first two trimesters of pregnancy, two office visits per month during the seventh and eighth months of pregnancy and one office visit per week during the ninth month and until term; provided underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 722 - that coverage for each office visit shall also include prenatal counseling and education and necessary and appropriate screening, including history, physical examination and the laboratory and diagnostic procedures deemed appropriate by the physician based upon recognized medical criteria for the risk group of which the patient is a member; (c) obstetrical care, including physicians' and certified nurse midwives' services, delivery room and other medically necessary services directly associated with delivery; (d) well-baby and well-child care, including periodic evaluation of a child's physical and emotional status, a history, a complete physical examination, a developmental assessment, anticipatory guidance, appropriate immunizations and laboratory tests in keeping with prevailing medical standards; provided that such evaluation and care shall be covered when performed at approximately the age intervals of birth, two weeks, two months, four months, six months, nine months, twelve months, fifteen months, eighteen months, two years, three years, four years, five years and six years; (e) coverage for low-dose screening mammograms for determining the presence of breast cancer; provided that the mammogram coverage shall include one baseline mammogram for persons age thirty-five through thirty- underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 723 - nine years, one biennial mammogram for persons age forty through forty-nine years and one annual mammogram for persons age fifty years and over; and further provided that the mammogram coverage shall only be subject to deductibles and co-insurance requirements consistent with those imposed on other benefits under the same policy or plan; (f) coverage for cytologic screening, to include a Papanicolaou test and pelvic exam for asymptomatic as well as symptomatic women; (g) a basic level of primary and preventive care, including no less than seven physician, nurse practitioner, nurse midwife or physician assistant office visits per calendar year, including any ancillary diagnostic or laboratory tests related to the office visit; (h) coverage for childhood immunizations, in accordance with the current schedule of immunizations recommended by the American academy of pediatrics, including coverage for all medically necessary booster doses of all immunizing agents used in childhood immunizations; provided that coverage for childhood immunizations and necessary booster doses may be subject to deductibles and co-insurance consistent with those imposed on other benefits under the same policy or plan; and (i) coverage for smoking cessation treatment. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 724 - C. A policy or plan may include the following managed care and cost control features to control costs: (1) a panel of providers who have entered into written agreements with the insurer, fraternal benefit society, health maintenance organization or nonprofit healthcare plan to provide covered healthcare services at specified levels of reimbursement; provided that such written agreement shall contain a provision relieving the individual, family or group covered by the policy or plan from an obligation to pay for a healthcare service performed by the provider that is determined by the insurer, fraternal benefit society, health maintenance organization or nonprofit healthcare plan not to be medically necessary; (2) a requirement for obtaining a second opinion before elective surgery is performed; (3) a procedure for utilization review by the insurer, fraternal benefit society, health maintenance organization or nonprofit healthcare plan; and (4) a maximum limit on the cost of healthcare services covered in a calendar year of not less than fifty thousand dollars ($50,000) and, effective for policies written or renewed on or after January 1, 2009, of not less than one hundred thousand dollars ($100,000), adjusted for changes not to exceed the medical price index component of the federal department of labor's consumer price index at intervals and in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 725 - a manner established by rule pursuant to the Minimum Healthcare Protection Act. D. Nothing contained in Subsection C of this section shall prohibit an insurer, fraternal benefit society, health maintenance organization or nonprofit healthcare plan from including in the policy or plan additional managed care and cost control provisions that the superintendent determines to have the potential for controlling costs in a manner that does not cause discriminatory treatment of individuals, families or groups covered by the policy or plan. E. Notwithstanding any other provisions of law, a policy or plan shall not exclude coverage for losses incurred for a preexisting condition more than six months from the effective date of coverage. The policy or plan shall not define a preexisting condition more restrictively than a condition for which medical advice was given or treatment recommended by or received from a physician within six months before the effective date of coverage. F. A medical group, independent practice association or health professional employed by or contracting with an insurer, fraternal benefit society, health maintenance organization or nonprofit healthcare plan shall not maintain an action against an insured person, family or group member for sums owed by an insurer, fraternal benefit society, health maintenance organization or nonprofit healthcare plan that are underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 726 - higher than those agreed to pursuant to a policy or plan." Section 311. Section 59A-23C-3 NMSA 1978 (being Laws 1991, Chapter 153, Section 3, as amended) is amended to read: "59A-23C-3. DEFINITIONS.--As used in the Small Group Rate and Renewability Act: A. "actuarial certification" means a written statement by a member of the American academy of actuaries or another individual acceptable to the superintendent that a small employer carrier is in compliance with the provisions of Section 59A-23C-5 NMSA 1978, based upon the person's examination, including a review of the appropriate records and of the actuarial assumptions and methods used by the carrier in establishing premium rates for applicable health benefit plans; B. "base premium rate" means, for each class of business as to a rating period, the lowest premium rate charged under a rating system for that class of business by the small employer carrier to small employers with similar case characteristics for health benefit plans with the same or similar coverage; C. "carrier" means any person who provides health insurance in this state. For the purposes of the Small Group Rate and Renewability Act, "carrier" or "insurer" includes a licensed insurance company, a licensed fraternal benefit society, a prepaid hospital or medical service plan, a health underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 727 - maintenance organization, a nonprofit health care organization, a multiple employer welfare arrangement or any other person providing a plan of health insurance subject to state insurance regulation; D. "case characteristics" means demographic or other relevant characteristics of a small employer, as determined by a small employer carrier, that are considered by the carrier in the determination of premium rates for the small employer, but "case characteristics" does not include claim experience, health status and duration of coverage since issue; E. "class of business" means all small employers as shown on the records of the small employer carrier. A separate class of business may be established by the small employer carrier on the basis that the applicable health benefit plans have been acquired from another small employer carrier as a distinct grouping of plans; F. "creditable coverage" means, with respect to an individual, coverage of the individual pursuant to: (1) a group health plan; (2) health insurance coverage; (3) Part A or Part B of Title 18 of the Social Security Act; (4) Title 19 of the Social Security Act except coverage consisting solely of benefits pursuant to Section underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 728 - 1928 of that title; (5) 10 USCA Chapter 55; (6) a medical care program of the Indian health service or of an Indian nation, tribe or pueblo; (7) the Comprehensive Health Insurance Pool Act; (8) a health plan offered pursuant to 5 USCA Chapter 89; (9) a public health plan as defined in federal regulations; or (10) a health benefit plan offered pursuant to Section 5(e) of the federal Peace Corps Act; G. "department" means the department of insurance; H. "group health plan" means an employee welfare benefit plan as defined Section 3(1) of the federal Employee Retirement Income Security Act of 1974 to the extent that the plan provides medical care and including items and services paid for as medical care to employees or their dependents as defined under the terms of the plan directly or through insurance, reimbursement or otherwise; I. "health benefit plan" or "plan" means any hospital or medical expense-incurred policy or certificate, hospital or medical service plan contract or health maintenance organization subscriber contract. "Health benefit plan" does not include accident-only, credit, dental or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 729 - disability income insurance, medicare supplement coverage, coverage issued as a supplement to liability insurance, workers' compensation or similar insurance or automobile medical-payment insurance; J. "index rate" means, for each class of business for small employers with similar case characteristics, the arithmetic average of the applicable base premium rate and the corresponding highest premium rate; K. "late enrollee" means, with respect to coverage under a group health plan, a participant or beneficiary who enrolls under the plan other than during: (1) the first period in which the individual is eligible to enroll under the plan; or (2) a special enrollment period pursuant to Sections [8 and 9 of the Health Insurance Portability Act] 59A-23E-8 and 59A-23E-9 NMSA 1978; L. "new business premium rate" means, for each class of business as to a rating period, the premium rate charged or offered by the small employer carrier to small employers with similar case characteristics for newly issued health benefit plans with the same or similar coverage; M. "rating period" means the calendar period for which premium rates established by a small employer carrier are assumed to be in effect, as determined by the small employer carrier; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 730 - N. "small employer" means any person, firm, corporation, partnership or association actively engaged in business who, on at least fifty percent of its working days during either of the two preceding years, employed no [less] fewer than two and no more than fifty eligible employees; provided that: (1) in determining the number of eligible employees, the spouse, domestic partner or dependent of an employee may, at the employer's discretion, be counted as a separate employee; (2) companies that are affiliated companies or that are eligible to file a combined tax return for purposes of state income taxation shall be considered one employer; and (3) in the case of an employer that was not in existence throughout a preceding calendar year, the determination of whether the employer is a small or large employer shall be based on the average number of employees that it is reasonably expected to employ on working days in the current calendar year; O. "small employer carrier" means any insurer that offers health benefit plans covering the employees of a small employer; and P. "superintendent" means the superintendent of insurance." Section 312. Section 59A-23D-2 NMSA 1978 (being Laws underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 731 - 1995, Chapter 93, Section 2, as amended) is amended to read: "59A-23D-2. DEFINITIONS.--As used in the Medical Care Savings Account Act: A. "account administrator" means any of the following that administers medical care savings accounts: (1) a national or state chartered bank, savings and loan association, savings bank or credit union; (2) a trust company authorized to act as a fiduciary in this state; (3) an insurance company or health maintenance organization authorized to do business in this state pursuant to the New Mexico Insurance Code; or (4) a person approved by the federal secretary of health and human services; B. "deductible" means the total covered medical expense an employee or [his] the employee's dependents must pay prior to any payment by a qualified higher deductible health plan for a calendar year; C. "department" means the insurance division of the public regulation commission; D. "dependent" means: (1) a spouse; (2) a domestic partner; [(2)] (3) an unmarried or unemancipated child of the employee who is not in a domestic partnership, who is a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 732 - minor and who is: (a) a natural child; (b) a legally adopted child; (c) a stepchild living in the same household who is primarily dependent on the employee for maintenance and support; (d) a child for whom the employee is the legal guardian and who is primarily dependent on the employee for maintenance and support, as long as evidence of the guardianship is evidenced in a court order or decree; or (e) a foster child living in the same household, if the child is not otherwise provided with health care or health insurance coverage; [(3)] (4) an unmarried child described in Subparagraphs (a) through (e) of Paragraph [(2)] (3) of this subsection who is not in a domestic partnership and who is between the ages of eighteen and twenty-five; or [(4)] (5) a child over the age of eighteen who is incapable of self-sustaining employment by reason of mental retardation or physical handicap and who is chiefly dependent on the employee for support and maintenance; E. "eligible individual" means an individual who with respect to any month: (1) is covered under a qualified higher deductible health plan as of the first day of that month; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 733 - (2) is not, while covered under a qualified higher deductible health plan, covered under [any] a health plan that: (a) is not a qualified higher deductible health plan; and (b) provides coverage for [any] a benefit that is covered under the qualified higher deductible health plan; and (3) is covered by a qualified higher deductible health plan that is established and maintained by the employer of the individual or of the spouse or domestic partner of the individual; F. "eligible medical expense" means an expense paid by the employee for medical care described in Section 213(d) of the Internal Revenue Code of 1986 that is deductible for federal income tax purposes to the extent that those amounts are not compensated for by insurance or otherwise; G. "employee" includes a self-employed individual; H. "employer" includes a self-employed individual; I. "medical care savings account" or "savings account" means an account established by an employer in the United States exclusively for the purpose of paying the eligible medical expenses of the employee or dependent, but only if the written governing instrument creating the trust meets the following requirements: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 734 - (1) except in the case of a rollover contribution, no contribution will be accepted: (a) unless it is in cash; or (b) to the extent the contribution, when added to previous contributions to the trust for the calendar year, exceeds seventy-five percent of the highest annual limit deductible permitted pursuant to the Medical Care Savings Account Act; (2) no part of the trust assets will be invested in life insurance contracts; (3) the assets of the trust will not be commingled with other property except in a common trust fund or common investment fund; and (4) the interest of an individual in the balance in [his] the individual's account is nonforfeitable; J. "program" means the medical care savings account program established by an employer for [his] employees; and K. "qualified higher deductible health plan" means a health coverage policy, certificate or contract that provides for payments for covered health care benefits that exceed the policy, certificate or contract deductible, that is purchased by an employer for the benefit of an employee and that has the following deductible provisions: (1) self-only coverage with an annual deductible of not less than one thousand five hundred dollars underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 735 - ($1,500) or more than two thousand two hundred fifty dollars ($2,250) and a maximum annual out-of-pocket expense requirement of three thousand dollars ($3,000), not including premiums; (2) family coverage with an annual deductible of not less than three thousand dollars ($3,000) or more than four thousand five hundred dollars ($4,500) and a maximum annual out-of-pocket expense requirement of five thousand five hundred dollars ($5,500), not including premiums; and (3) preventive care coverage may be provided within the policies without the preventive care being subjected to the qualified higher deductibles." Section 313. Section 59A-23E-9 NMSA 1978 (being Laws 1997, Chapter 243, Section 9, as amended) is amended to read: "59A-23E-9. GROUP HEALTH PLAN--SPECIAL ENROLLMENT PERIODS FOR DEPENDENT BENEFICIARIES.-- A. A group health plan shall provide for a dependent special enrollment period described in Subsection B of this section during which a person may be enrolled under the plan as a dependent of the individual, and in the case of the birth or adoption of a child, the spouse or domestic partner of the individual may be enrolled as a dependent of the individual if the spouse or domestic partner is otherwise eligible for coverage, if: (1) the plan makes coverage available to a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 736 - dependent of an individual; (2) the individual is a participant under the plan or has met any waiting period applicable to becoming a participant and is eligible to be enrolled under the plan but for a failure to enroll during a previous enrollment period; and (3) the person has become the dependent of the individual through marriage, domestic partnership, birth, adoption or placement for adoption. B. A dependent special enrollment period pursuant to this subsection shall be for a period of not less than thirty days and shall begin on the later of: (1) the date dependent coverage is made available; or (2) the date of the marriage, entry into domestic partnership, birth, adoption or placement for adoption described in Subsection A of this section. C. If an individual seeks to enroll a person as a dependent during the first thirty days of a dependent special enrollment period, the coverage of the dependent becomes effective: (1) in the case of marriage or domestic partnership, not later than the first day of the first month beginning after the date the completed request for enrollment is received; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 737 - (2) in the case of birth, as of the date of the birth; or (3) in the case of adoption or placement for adoption, the date of the adoption or placement." Section 314. Section 59A-46-32 NMSA 1978 (being Laws 1984, Chapter 127, Section 876.1) is amended to read: "59A-46-32. CONTINUATION OF COVERAGE AND CONVERSION RIGHT--HEALTH CARE PLANS.-- A. Every individual or group contract entered into by a health maintenance organization and that is delivered, issued for delivery or renewed in this state on or after January 1, 1985 shall provide covered family members of subscribers the right to continue such coverage through a converted or separate contract upon the death of the subscriber or upon the divorce, annulment or dissolution of marriage or domestic partnership or legal separation of the spouse or domestic partner from the subscriber. Where a continuation of coverage or conversion is made in the name of the spouse or domestic partner of the subscriber, such coverage may, at the option of the spouse or domestic partner, include coverage to dependent children for whom the spouse or domestic partner has responsibility for care and support. B. The right to a continuation of coverage or conversion pursuant to this section shall not exist with respect to any covered family member of a subscriber in the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 738 - event the coverage terminates for nonpayment of premium, nonrenewal of the contract or the expiration of the term for which the contract is issued. With respect to any covered family member who is eligible for medicare or any other similar federal or state health insurance program, the right to a continuation of coverage or conversion shall be limited to coverage under a medicare supplement insurance contract as defined by the rules and regulations adopted by the superintendent of insurance. C. Coverage continued through the issuance of a converted or separate contract shall be provided at a reasonable, nondiscriminatory rate to the insured and shall consist of a form of coverage then being offered by the health maintenance organization as a conversion contract. Continued and converted coverages shall contain renewal provisions that are not less favorable to the subscriber than those contained in the contract from which the conversion is made, except that the person who exercises the right of conversion is entitled only to have included a right to coverage under a medicare supplement insurance contract, as defined by the rules and regulations adopted by the superintendent of insurance, after the attainment of the age of eligibility for medicare or any other similar federal or state health insurance program. D. At the time of inception of coverage, the health maintenance organization shall provide each covered family underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 739 - member eighteen years of age or older a statement setting forth in summary form the continuation of coverage and conversion provisions of the subscriber's contract. E. The eligible covered family member exercising the continuation or conversion right [and] must notify the health maintenance organization and make payment of the applicable premium within thirty days following the date such coverage otherwise terminates as specified in the contract from which continuation or conversion is being exercised. F. Coverage shall be provided through continuation or conversion without additional evidence of insurability and shall not impose any preexisting condition, limitations or other contractual time limitations other than those remaining unexpired under the contract from which continuation or conversion is exercised. G. Any probationary or waiting period set forth in the converted or separate contract is deemed to commence on the effective date of the applicant's coverage under the original contract." Section 315. Section 59A-46-38 NMSA 1978 (being Laws 1984, Chapter 127, Section 874, as amended) is amended to read: "59A-46-38. NEWLY BORN CHILDREN COVERAGE.-- A. All individual and group health maintenance organization contracts delivered or issued for delivery in underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 740 - this state shall also provide that the health benefits applicable for children shall be payable with respect to a newly born child of the subscriber or the subscriber's spouse or domestic partner from the moment of birth. B. All individual and group health maintenance organization contracts delivered or issued for delivery in this state that do not provide health benefits applicable for children shall provide for an option to add to the coverage any newly born child of the insured, provided that the requirements of Subsection D of this section have been met. C. The coverage for newly born children shall consist of coverage of injury or sickness, including the necessary care and treatment of medically diagnosed congenital defects and birth abnormalities and, where necessary to protect the life of the infant, transportation, including air transport, to the nearest available tertiary care facility for newly born infants. D. If a specific payment is required to provide coverage for a child, the contract may require that a notification of birth of a newly born child and payment [must] be furnished to the health maintenance organization within thirty-one days after the date of birth in order to have the coverage from birth. E. As used in this section and in Section [59A-46-28] 59A-46-39 NMSA 1978, "tertiary care facility" underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 741 - means a hospital unit [which] that provides complete perinatal care and intensive care of intrapartum and perinatal high-risk patients with responsibilities for coordination of transport, communication, education and data analysis systems for the geographic area served." Section 316. Section 59A-47-34 NMSA 1978 (being Laws 1984, Chapter 127, Section 879.33) is amended to read: "59A-47-34. CONTINUATION OF COVERAGE AND CONVERSION RIGHTS--HEALTH CARE PLANS.-- A. Every individual or group contract entered into by a health care plan that provides for health care expense payments on a service benefit basis or an indemnity benefit basis or both and that is delivered, issued for delivery or renewed in this state on or after July 1, 1984 shall provide covered family members of subscribers the right to continue such coverage through a converted or separate contract upon the death of the subscriber or upon the divorce, annulment or dissolution of marriage or domestic partnership or legal separation of the spouse or domestic partner from the subscriber. Where a continuation of coverage or conversion is made in the name of the spouse or domestic partner of the subscriber, such coverage may, at the option of the spouse or domestic partner, include coverage to dependent children for whom the spouse or domestic partner has responsibility for care and support. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 742 - B. The right to a continuation of coverage or conversion pursuant to this section shall not exist with respect to any covered family member of a subscriber in the event the coverage terminates for nonpayment of premium, nonrenewal of the contract or the expiration of the term for which the contract is issued. With respect to any covered family member who is eligible for medicare or any other similar federal or state health insurance program, the right to a continuation of coverage or conversion shall be limited to coverage under a medicare supplement insurance contract as defined by the rules and regulations adopted by the superintendent of insurance. C. Coverage continued through the issuance of a converted or separate contract shall be provided at a reasonable, nondiscriminatory rate to the insured and shall consist of a form of coverage then being offered by the health care plan as a conversion contract in the jurisdiction where the person exercising the conversion right resides that most nearly approximates the coverage of the contract from which conversion is exercised. Continued and converted coverages shall contain renewal provisions that are not less favorable to the subscriber than those contained in the policy from which the conversion is made, except that the person who exercises the right of conversion is entitled only to have included a right to coverage under a medicare supplement underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 743 - insurance contract, as defined by the rules and regulations adopted by the superintendent of insurance, after the attainment of the age of eligibility for medicare or any other similar federal or state health insurance program. D. At the time of inception of coverage, the health care plan shall provide each covered family member eighteen years of age or older a statement setting forth in summary form the continuation of coverage and conversion provisions of the subscriber's contract. E. The eligible covered family member exercising the continuation or conversion right must notify the health care plan and make payment of the applicable premium within thirty days following the date such coverage otherwise terminates as specified in the contract from which continuation or conversion is being exercised. F. Coverage shall be provided through continuation or conversion without additional evidence of insurability and shall not impose any preexisting condition, limitations or other contractual time limitations other than those remaining unexpired under the contract from which continuation or conversion is exercised. G. Any probationary or waiting period set forth in the converted or separate contract is deemed to commence on the effective date of the applicant's coverage under the original contract." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 744 - Section 317. Section 59A-54-3 NMSA 1978 (being Laws 1987, Chapter 154, Section 3, as amended) is amended to read: "59A-54-3. DEFINITIONS.--As used in the Medical Insurance Pool Act: A. "board" means the board of directors of the pool; B. "creditable coverage" means, with respect to an individual, coverage of the individual pursuant to: (1) a group health plan; (2) health insurance coverage; (3) Part A or Part B of Title 18 of the Social Security Act; (4) Title 19 of the Social Security Act except coverage consisting solely of benefits pursuant to Section 1928 of that title; (5) 10 USCA Chapter 55; (6) the Medical Insurance Pool Act; (7) a health plan offered pursuant to 5 USCA Chapter 89; (8) a public health plan as defined in federal regulations; or (9) a health benefit plan offered pursuant to Section 5(e) of the federal Peace Corps Act; C. "federally defined eligible individual" means an individual: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 745 - (1) for whom, as of the date on which the individual seeks coverage under the Medical Insurance Pool Act, the aggregate of the periods of creditable coverage is eighteen or more months; (2) whose most recent prior creditable coverage was under a group health plan, governmental plan, church plan or health insurance coverage, as those plans or coverage are defined in Section 59A-23E-2 NMSA 1978, offered in connection with that plan; (3) who is not eligible for coverage under a group health plan, Part A or Part B of Title 18 of the Social Security Act or a state plan under Title 19 or Title 21 of the Social Security Act or a successor program and who does not have other health insurance coverage; (4) with respect to whom the most recent coverage within the period of aggregate creditable coverage was not terminated based on a factor relating to nonpayment of premiums or fraud; (5) who, if offered the option of continuation of coverage under a continuation provision pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 or a similar state program, elected this coverage; and (6) who has exhausted continuation coverage under this provision or program, if the individual elected the continuation coverage described in Paragraph (5) of this underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 746 - subsection; D. "health care facility" means an entity providing health care services that is licensed by the department of health; E. "health care services" means services or products included in the furnishing to an individual of medical care or hospitalization, or incidental to the furnishing of that care or hospitalization, as well as the furnishing to a person of other services or products for the purpose of preventing, alleviating, curing or healing human illness or injury; F. "health insurance" means a hospital and medical expense-incurred policy; nonprofit health care service plan contract; health maintenance organization subscriber contract; short-term, accident, fixed indemnity or specified disease policy; disability income contracts; limited benefit insurance; credit insurance; or as the term is defined by Section 59A-7-3 NMSA 1978. "Health insurance" does not include insurance arising out of the Workers' Compensation Act or similar law, automobile medical payment insurance or insurance under which benefits are payable with or without regard to fault and that is required by law to be contained in a liability insurance policy; G. "health maintenance organization" means a person who provides, at a minimum, either directly or through underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 747 - contractual or other arrangements with others, basic health care services to enrollees on a fixed prepayment basis and who is responsible for the availability, accessibility and quality of the health care services provided or arranged, or as the term is defined by Subsection M of Section 59A-46-2 NMSA 1978; H. "health plan" means an arrangement by which persons, including dependents, [or] spouses or domestic partners, covered or making application to be covered under the pool have access to hospital and medical benefits or reimbursement, including group or individual insurance or subscriber contract; coverage through health maintenance organizations, preferred provider organizations or other alternate delivery systems; coverage under prepayment, group practice or individual practice plans; coverage under uninsured arrangements of group or group-type contracts, including employer self-insured, cost-plus or other benefits methodologies not involving insurance or not subject to New Mexico premium taxes; coverage under group-type contracts that are not available to the general public and can be obtained only because of connection with a particular organization or group; and coverage by medicare or other governmental benefits. "Health plan" includes coverage through health insurance; I. "insured" means an individual resident of this state who is eligible to receive benefits from an insurer or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 748 - other health plan; J. "insurer" means an insurance company authorized to transact health insurance business in this state, a nonprofit health care plan, a health maintenance organization and self-insurers not subject to federal preemption. "Insurer" does not include an insurance company that is licensed under the Prepaid Dental Plan Law or a company that is solely engaged in the sale of dental insurance and is licensed not under that act, but under another provision of the Insurance Code; K. "medicare" means coverage under Part A or Part B of Title 18 of the Social Security Act, as amended; L. "pool" means the New Mexico medical insurance pool; M. "preexisting condition" means a physical or mental condition for which medical advice, medication, diagnosis, care or treatment was recommended for or received by an applicant within six months before the effective date of coverage, except that pregnancy is not considered a preexisting condition for a federally defined eligible individual; and N. "therapist" means a licensed physical, occupational, speech or respiratory therapist." Section 318. Section 59A-54-4 NMSA 1978 (being Laws 1987, Chapter 154, Section 4, as amended) is amended to read: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 749 - "59A-54-4. POOL CREATED--BOARD.-- A. There is created a nonprofit entity to be known as the "New Mexico medical insurance pool". All insurers shall organize and remain members of the pool as a condition of their authority to transact insurance business in this state. The board is a governmental entity for purposes of the Tort Claims Act. B. The superintendent shall, within sixty days after the effective date of the Medical Insurance Pool Act, give notice to all insurers of the time and place for the initial organizational meetings of the pool. Each member of the pool shall be entitled to one vote in person or by proxy at the organizational meetings. C. The pool shall operate subject to the supervision and approval of the board. The board shall consist of the superintendent or [his] the superintendent's designee, who shall serve as the [chairman] chair of the board, four members appointed by the members of the pool and six members appointed by the superintendent. The members appointed by the superintendent shall consist of four citizens who are not professionally affiliated with an insurer, at least two of whom shall be individuals who are insured by the pool, who would qualify for pool coverage if they were not eligible for particular group coverage or who are a parent, guardian, relative, [or] spouse or domestic partner of such an underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 750 - individual. The superintendent's fifth appointment shall be a representative of a statewide health planning agency or organization. The superintendent's sixth appointment shall be a representative of the medical community. D. The members of the board appointed by the members of the pool shall be appointed for initial terms of four years or less, staggered so that the term of one member shall expire on June 30 of each year. The members of the board appointed by the superintendent shall be appointed for initial terms of five years or less, staggered so that the term of one member expires on June 30 of each year. Following the initial terms, members of the board shall be appointed for terms of three years. If the members of the pool fail to make the initial appointments required by this subsection within sixty days following the first organizational meeting, the superintendent shall make those appointments. Whenever a vacancy on the board occurs, the superintendent shall fill the vacancy by appointing a person to serve the balance of the unexpired term. The person appointed shall meet the requirements for initial appointment to that position. Members of the board may be reimbursed from the pool subject to the limitations provided by the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance. E. The board shall submit a plan of operation to underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 751 - the superintendent and any amendments to it necessary or suitable to assure the fair, reasonable and equitable administration of the pool. F. The superintendent shall, after notice and hearing, approve the plan of operation, provided that it is determined to assure the fair, reasonable and equitable administration of the pool and that it provides for the sharing of pool losses on an equitable, proportionate basis among the members of the pool. The plan of operation shall become effective upon approval in writing by the superintendent consistent with the date on which coverage under the Medical Insurance Pool Act is made available. If the board fails to submit a plan of operation within one hundred eighty days after the appointment of the board, or any time thereafter fails to submit necessary amendments to the plan of operation, the superintendent shall, after notice and hearing, adopt and promulgate such rules as are necessary or advisable to effectuate the provisions of the Medical Insurance Pool Act. Rules promulgated by the superintendent shall continue in force until modified by [him] the superintendent or superseded by a subsequent plan of operation submitted by the board and approved by the superintendent. G. Any reference in law, rule, division bulletin, contract or other legal document to the New Mexico comprehensive health insurance pool shall be deemed to refer underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 752 - to the New Mexico medical insurance pool." Section 319. Section 59A-54-16 NMSA 1978 (being Laws 1987, Chapter 154, Section 16, as amended) is amended to read: "59A-54-16. POOL POLICY.-- A. A pool policy offered under the Medical Insurance Pool Act shall contain provisions under which the pool is obligated to renew the contract until the day on which the individual in whose name the contract is issued first becomes eligible for medicare coverage, except that in a family policy covering both husband and wife or both domestic partners, the age of the younger spouse or domestic partner shall be used as the basis for meeting the durational requirement of this subsection. B. The pool shall not change the rates for pool policies except on a class basis with a clear disclosure in the policy of the right of the pool to do so. C. In the case of a small group policy, a pool policy offered under the Medical Insurance Pool Act shall provide covered family members the right to continue the policy as the named insured or through a conversion policy upon the death of the named insured or upon the divorce, annulment or dissolution of marriage or domestic partnership or legal separation of the spouse or domestic partner from the named insured by election to do so within a period of time specified in the contract subject to the requirements of this underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 753 - section." Section 320. Section 59A-56-3 NMSA 1978 (being Laws 1994, Chapter 75, Section 3, as amended) is amended to read: "59A-56-3. DEFINITIONS.--As used in the Health Insurance Alliance Act: A. "alliance" means the New Mexico health insurance alliance; B. "approved health plan" means any arrangement for the provisions of health insurance offered through and approved by the alliance; C. "board" means the board of directors of the alliance; D. "child" means a dependent unmarried individual who is not in a domestic partnership and who is less than twenty-five years of age; E. "creditable coverage" means, with respect to an individual, coverage of the individual pursuant to: (1) a group health plan; (2) health insurance coverage; (3) Part A or Part B of Title 18 of the federal Social Security Act; (4) Title 19 of the federal Social Security Act except coverage consisting solely of benefits pursuant to Section 1928 of that title; (5) 10 USCA Chapter 55; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 754 - (6) a medical care program of the Indian health service or of an Indian nation, tribe or pueblo; (7) the Medical Insurance Pool Act; (8) a health plan offered pursuant to 5 USCA Chapter 89; (9) a public health plan as defined in federal regulations; or (10) a health benefit plan offered pursuant to Section 5(e) of the federal Peace Corps Act; F. "department" means the insurance division of the commission; G. "director" means an individual who serves on the board; H. "earned premiums" means premiums paid or due during a calendar year for coverage under an approved health plan less any unearned premiums at the end of that calendar year plus any unearned premiums from the end of the immediately preceding calendar year; I. "eligible expenses" means the allowable charges for a health care service covered under an approved health plan; J. "eligible individual": (1) means an individual who: (a) as of the date of the individual's application for coverage under an approved health plan, has an underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 755 - aggregate of eighteen or more months of creditable coverage, the most recent of which was under a group health plan, governmental plan or church plan as those plans are defined in Subsections P, N and D of Section 59A-23E-2 NMSA 1978, respectively, or health insurance offered in connection with any of those plans, but for the purposes of aggregating creditable coverage, a period of creditable coverage shall not be counted with respect to enrollment of an individual for coverage under an approved health plan if, after that period and before the enrollment date, there was a sixty-three-day or longer period during all of which the individual was not covered under any creditable coverage; or (b) is entitled to continuation coverage pursuant to Section 59A-56-20 or 59A-23E-19 NMSA 1978; and (2) does not include an individual who: (a) has or is eligible for coverage under a group health plan; (b) is eligible for coverage under medicare or a state plan under Title 19 of the federal Social Security Act or any successor program; (c) has health insurance coverage as defined in Subsection R of Section 59A-23E-2 NMSA 1978; (d) during the most recent coverage within the coverage period described in Subparagraph (a) of Paragraph (1) of this subsection was terminated from coverage as a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 756 - result of nonpayment of premium or fraud; or (e) has been offered the option of coverage under a COBRA continuation provision as that term is defined in Subsection F of Section 59A-23E-2 NMSA 1978, or under a similar state program, except for continuation coverage under Section 59A-56-20 NMSA 1978, and did not exhaust the coverage available under the offered program; K. "enrollment date" means, with respect to an individual covered under a group health plan or health insurance coverage, the date of enrollment of the individual in the plan or coverage or, if earlier, the first day of the waiting period for that enrollment; L. "gross earned premiums" means premiums paid or due during a calendar year for all health insurance written in the state less any unearned premiums at the end of that calendar year plus any unearned premiums from the end of the immediately preceding calendar year; M. "group health plan" means an employee welfare benefit plan to the extent the plan provides hospital, surgical or medical expenses benefits to employees or their dependents, as defined by the terms of the plan, directly through insurance, reimbursement or otherwise; N. "health care service" means a service or product furnished an individual for the purpose of preventing, alleviating, curing or healing human illness or injury and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 757 - includes services and products incidental to furnishing the described services or products; O. "health insurance" means "health" insurance as defined in Section 59A-7-3 NMSA 1978; any hospital and medical expense-incurred policy; nonprofit health care plan service contract; health maintenance organization subscriber contract; short-term, accident, fixed indemnity, specified disease policy or disability income insurance contracts and limited health benefit or credit health insurance; coverage for health care services under uninsured arrangements of group or group- type contracts, including employer self-insured, cost-plus or other benefits methodologies not involving insurance or not subject to New Mexico premium taxes; coverage for health care services under group-type contracts that are not available to the general public and can be obtained only because of connection with a particular organization or group; coverage by medicare or other governmental programs providing health care services; but "health insurance" does not include insurance issued pursuant to provisions of the Workers' Compensation Act or similar law, automobile medical payment insurance or provisions by which benefits are payable with or without regard to fault and are required by law to be contained in any liability insurance policy; P. "health maintenance organization" means a health maintenance organization as defined by Subsection M of Section underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 758 - 59A-46-2 NMSA 1978; Q. "incurred claims" means claims paid during a calendar year plus claims incurred in the calendar year and paid prior to April 1 of the succeeding year, less claims incurred previous to the current calendar year and paid prior to April 1 of the current year; R. "insured" means a small employer or its employee and an individual covered by an approved health plan, a former employee of a small employer who is covered by an approved health plan through conversion or an individual covered by an approved health plan that allows individual enrollment; S. "medicare" means coverage under both Parts A and B of Title 18 of the federal Social Security Act; T. "member" means a member of the alliance; U. "nonprofit health care plan" means a health care plan as defined in Subsection K of Section 59A-47-3 NMSA 1978; V. "premiums" means the premiums received for coverage under an approved health plan during a calendar year; W. "small employer" means a person that is a resident of this state, has employees at least fifty percent of whom are residents of this state, is actively engaged in business and that on at least fifty percent of its working days during either of the two preceding calendar years, employed no fewer than two and no more than fifty eligible employees; provided that: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 759 - (1) in determining the number of eligible employees, the spouse, domestic partner or dependent of an employee may, at the employer's discretion, be counted as a separate employee; (2) companies that are affiliated companies or that are eligible to file a combined tax return for purposes of state income taxation shall be considered one employer; and (3) in the case of an employer that was not in existence throughout a preceding calendar year, the determination of whether the employer is a small or large employer shall be based on the average number of employees that it is reasonably expected to employ on working days in the current calendar year; X. "superintendent" means the superintendent of insurance; Y. "total premiums" means the total premiums for business written in the state received during a calendar year; and Z. "unearned premiums" means the portion of a premium previously paid for which the coverage period is in the future." Section 321. Section 59A-56-20 NMSA 1978 (being Laws 1994, Chapter 75, Section 20, as amended) is amended to read: "59A-56-20. RENEWABILITY.-- A. An approved health plan shall contain provisions underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 760 - under which the member offering the plan is obligated to renew the health insurance if premiums are paid until the day the plan is replaced by another plan or the small employer terminates coverage. B. An approved health plan issued to an eligible individual shall contain provisions under which the member offering the plan is obligated to renew the health insurance except for: (1) nonpayment of premium; (2) fraud; or (3) termination of the approved health plan, except that the individual has the right to transfer to another approved health plan. C. If an approved health plan ceases to exist, the alliance shall provide an alternate approved health plan. D. An approved health plan shall provide covered individuals the right to continue health insurance coverage through an approved health plan as individual health insurance provided by the same member upon the death of the employee or upon the divorce, annulment or dissolution of marriage or domestic partnership or legal separation of the spouse or domestic partner from the employee or by termination of employment by electing to do so within a period of time specified in the health insurance if the employee was covered under an approved health plan while employed for at least six underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 761 - consecutive months. The individual may be charged an additional administrative charge for the individual health insurance. E. The right to continue health insurance coverage provided in this section terminates if the covered individual resides outside the United States for more than six consecutive months." Section 322. Section 60-1A-8 NMSA 1978 (being Laws 2007, Chapter 39, Section 8) is amended to read: "60-1A-8. RACETRACK LICENSES--APPLICATIONS--SPECIFIC REQUIREMENTS.-- A. It is a violation of the Horse Racing Act for a person to hold a public horse race or a race meet for profit or gain in any manner unless the person has been issued a racetrack license by the commission and has been authorized by the commission to hold the horse race or race meet on specific dates. B. An application for a racetrack license shall be submitted in writing on forms designated by the commission. An applicant shall affirm that information contained in the application is true and accurate. The application shall be signed by the applicant or the applicant's agent, and the signature shall be notarized. C. A racetrack license shall be valid for a period not to exceed one year. The commission may renew a racetrack underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 762 - license upon expiration of the term of the license. D. Renewal applications for racetrack licenses shall be filed no later than June 1 of each year. The race dates for the upcoming year shall be set by the commission after the commission receives all renewal applications. E. An application shall specify the dates and days of the week of the race meet that the applicant is requesting the commission to approve. F. An application shall be filed not less than sixty days prior to the first day the proposed horse race or race meet is to be held. G. The fee for a new racetrack license issued pursuant to this section shall not exceed five thousand dollars ($5,000). H. The commission may schedule a date for a hearing on the application for a new racetrack license to determine the eligibility of the applicant pursuant to the Horse Racing Act or as needed for determining the eligibility for the renewal of a racetrack license. The applicant shall be notified of the hearing at least five days prior to the date of the hearing. The applicant has the right to present testimony in support of the application. Notice shall be mailed to the address of the applicant appearing upon the application for the racetrack license. Notice of the hearing date, time and location shall be postmarked by United States underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 763 - mail five days prior to the date of the hearing. Deposit of the hearing notice in United States mail constitutes notice. I. If, after a hearing on the application, the commission finds the applicant ineligible pursuant to the provisions of the Horse Racing Act or rules adopted by the board, the racetrack license shall be denied. J. If there is more than one application for a racetrack license pending at the same time, the commission shall determine the racing days that will be allotted to each successful applicant. Upon renewal, the commission shall determine the racing days that will be allotted to each applicant upon terms and conditions established by the commission. K. A person shall not have a direct, indirect or beneficial interest of any nature, whether or not financial, administrative, policymaking or supervisory, in more than two horse racetracks in New Mexico. For purposes of this subsection, a person shall not be considered to have a direct, indirect or beneficial interest in a horse racetrack if the person owns or holds less than ten percent of the total authorized, issued and outstanding shares of a corporation that is licensed to conduct a race meet in New Mexico, unless the person has some other direct, indirect or beneficial interest of any nature, whether or not financial, administrative, policymaking or supervisory, in more than two underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 764 - licensed horse racetracks. L. To determine interest held in a racetrack, to the extent that the interest is based on stock ownership: (1) stock owned, directly or indirectly, by or for a corporation, partnership, estate or trust shall be considered as being owned proportionately by its shareholders, partners or beneficiaries; (2) an individual shall be considered as owning the stock, directly or indirectly, if it is held by an immediate family member. For purposes of this paragraph, an "immediate family member" includes only the individual's siblings, spouse, domestic partner or children; and (3) stock constructively owned by a person by reason of the application of Paragraph (1) of this subsection shall be considered to be actually owned by the person; and stock shall be constructively owned by an individual by reason of the application of Paragraph (2) of this subsection if the purpose of the constructive ownership is to make a person other than the individual applicant appear as the owner of the stock. M. A corporation holding a racetrack license shall not issue to a person shares of its stock amounting to ten percent or more of the total authorized, issued and outstanding shares, and a corporation holding a racetrack license shall not issue shares of its stock that would, when underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 765 - combined with that stock transferee's existing shares owned, total more than ten percent of the total authorized, issued and outstanding shares of the corporation, unless: (1) the corporation gives written notice to the commission at least sixty days before the contemplated stock transfer that the person to whom the stock is being transferred will become an owner of ten percent or more of the total authorized, issued and outstanding shares of the corporation; and (2) the corporation receives written approval from the commission of the proposed transfer. N. A determination made by the commission of a matter pursuant to this section shall be final and not subject to appeal." Section 323. Section 60-6B-1 NMSA 1978 (being Laws 1981, Chapter 39, Section 37, as amended) is amended to read: "60-6B-1. PERSONS PROHIBITED FROM RECEIVING OR HOLDING LICENSES.--The following classes of persons shall be prohibited from receiving or holding licenses under the provisions of the Liquor Control Act: A. a person who has been convicted of two separate misdemeanor or petty misdemeanor violations of the Liquor Control Act in any calendar year or of any felony, unless the person is restored to the privilege of receiving and holding licenses by the governor or unless the director determines underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 766 - that the person merits the public trust, in which case the person shall receive licenses under reasonable terms and conditions fixed by the director, which shall include that the person pay an administrative penalty of two thousand five hundred dollars ($2,500) for each license held by that person; B. a person whose spouse or domestic partner had been convicted of a felony unless the person demonstrates that the convicted spouse or convicted domestic partner will have no involvement in the operation of the license; C. a minor; or D. a corporation that is not duly qualified to do business in New Mexico, unless the licensee holds a public service license or a nonresident license issued [under] as provided in Section 60-6A-7 NMSA 1978; provided, however, that a corporation that owns stock in a corporation that owns a New Mexico liquor license does not need to be qualified to do business in New Mexico regardless of the size of the ownership interest." Section 324. Section 60-7A-13 NMSA 1978 (being Laws 1981, Chapter 39, Section 79, as amended) is amended to read: "60-7A-l3. SALES BY CLUBS.-- A. Any club licensed pursuant to the provisions of the Liquor Control Act shall only have the right to sell alcoholic beverages by the drink and wine by the bottle for consumption on the premises. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 767 - B. Except as otherwise provided in this section, it is unlawful and grounds for suspension or revocation of its license for a club to: (1) solicit by advertising or any other means public patronage of its alcoholic beverage facilities. In the event the club solicits public patronage of its other facilities, alcoholic beverages shall not be sold, served or consumed on the premises while the other facilities are being used by or operated for the benefit of the general public, unless the alcoholic beverage facilities are separate from the other facilities and the general public is not permitted to enter any part of the facilities where alcoholic beverages are being sold, served or consumed; or (2) serve, sell or permit the consumption of alcoholic beverages to persons other than members and their bona fide guests. C. A club licensed pursuant to the provisions of the Liquor Control Act may allow its facilities, including its licensed premises, to be used, for activities other than its own, no more than two times in a calendar year for fundraising events held by other nonprofit organizations. D. For the purposes of this section: (1) "bona fide guest" means a person whose presence in the club is in response to a specific invitation by a member and for whom the member assumes responsibility; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 768 - and (2) "member" includes the adult spouse or adult domestic partner and the children of a member who pays membership dues or of a deceased member who paid membership dues or a member of an official auxiliary or subsidiary group of the club who has been issued a personal identification card in accordance with the rules and regulations of the club." Section 325. Section 60-7B-1 NMSA 1978 (being Laws 1993, Chapter 68, Section 22, as amended) is amended to read: "60-7B-1. SELLING OR GIVING ALCOHOLIC BEVERAGES TO MINORS--POSSESSION OF ALCOHOLIC BEVERAGES BY MINORS.-- A. It is a violation of the Liquor Control Act for a person, including a person licensed pursuant to the provisions of the Liquor Control Act, or an employee, agent or lessee of that person, if [he] the person knows or has reason to know that [he] the person is violating the provisions of this section, to: (1) sell, serve or give alcoholic beverages to a minor or permit a minor to consume alcoholic beverages on the licensed premises; (2) buy alcoholic beverages for or procure the sale or service of alcoholic beverages to a minor; (3) deliver alcoholic beverages to a minor; or (4) aid or assist a minor to buy, procure or be served with alcoholic beverages. underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 769 - B. It is not a violation of the Liquor Control Act, as provided in Subsection A or C of this section, when: (1) a parent, legal guardian, [or] adult spouse or adult domestic partner of a minor serves alcoholic beverages to that minor on real property, other than licensed premises, under the control of the parent, legal guardian, [or] adult spouse or adult domestic partner; or (2) alcoholic beverages are used in the practice of religious beliefs. C. It is a violation of the Liquor Control Act for a minor to buy, attempt to buy, receive, possess or permit [himself to be] being served [with] alcoholic beverages. D. When a person other than a minor procures another person to sell, serve or deliver alcoholic beverages to a minor by actual or constructive misrepresentation of facts or concealment of facts calculated to cause the person selling, serving or delivering the alcoholic beverages to the minor to believe that the minor is legally entitled to be sold, served or delivered alcoholic beverages, and actually deceives that person by that misrepresentation or concealment, then the procurer and not the person deceived shall have violated the provisions of the Liquor Control Act. E. As used in the Liquor Control Act, "minor" means a person under twenty-one years of age. F. In addition to the penalties provided in Section underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 770 - 60-6C-1 NMSA 1978, a violation of the provisions of Subsection A of this section is a fourth degree felony and the offender shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. G. A violation of the provisions of Subsection C of this section is a misdemeanor and the offender shall be punished as follows: (1) for a first violation, the offender shall be: (a) fined an amount not more than one thousand dollars ($1,000); and (b) ordered by the sentencing court to perform thirty hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor; (2) for a second violation, the offender shall: (a) be fined an amount not more than one thousand dollars ($1,000); (b) be ordered by the sentencing court to perform forty hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor; and (c) have [his] the offender's driver's license suspended for a period of ninety days. If the minor is too young to possess a driver's license at the time of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 771 - violation, then ninety days shall be added to the date [he] the offender would otherwise become eligible to obtain a driver's license; and (3) for a third or subsequent violation, the offender shall: (a) be fined an amount not more than one thousand dollars ($1,000); (b) be ordered by the sentencing court to perform sixty hours of community service related to reducing the incidence of driving while under the influence of intoxicating liquor; and (c) have [his] the offender's driver's license suspended for a period of two years or until the offender reaches twenty-one years of age, whichever period of time is greater. H. A violation of the provisions of Subsection D of this section is a fourth degree felony and the offender shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978." Section 326. Section 60-7B-10 NMSA 1978 (being Laws 1981, Chapter 39, Section 90, as amended) is amended to read: "60-7B-10. MINORS IN LICENSED PREMISES--REGULATIONS.-- A. Any person licensed pursuant to the provisions of the Liquor Control Act or any employee, agent or lessee of that person who permits a minor to enter and remain in any underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 772 - area of a licensed premises that is prohibited to the use of minors is guilty of a violation of the Liquor Control Act. B. A minor shall not enter or attempt to enter any area of a licensed premises that is posted or otherwise identified as being prohibited to the use of minors, except as authorized by regulation or as necessitated by an emergency. A person who violates the provisions of this subsection is guilty of a petty misdemeanor and shall be punished pursuant to the provisions of Section 31-19-1 NMSA 1978. C. The director of the alcohol and gaming division of the regulation and licensing department shall adopt regulations classifying the types of licensed premises or areas of licensed premises where minors may be present. The director shall require that signs issued by the division be posted by licensees to inform the public, including minors, of the areas in licensed premises that are open to minors. The regulations may allow minors in those areas of licensed premises where: (1) the consumption of alcoholic beverages is the primary activity, when a minor is accompanied by a parent, adult spouse, adult domestic partner or legal guardian; or (2) there is no consumption of alcoholic beverages." Section 327. Section 61-4-10 NMSA 1978 (being Laws 1968, Chapter 3, Section 10, as amended) is amended to read: underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 773 - "61-4-10. REFUSAL, SUSPENSION OR REVOCATION OF LICENSE.-- A. The board may refuse to issue or may suspend or revoke any license or may censure, reprimand, fine or place on probation and stipulation any licensee in accordance with the procedures as contained in the Uniform Licensing Act upon the grounds that the licensee or applicant: (1) is convicted of a felony. A copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence of such conviction; (2) is guilty of fraud or deceit in procuring or attempting to procure a license in the chiropractic profession or in connection with applying for or procuring license renewal; (3) is guilty of incompetence; (4) is habitually intemperate or is addicted to the use of habit-forming drugs or is addicted to any vice to such a degree as to render the licensee or applicant unfit to practice chiropractic; (5) is guilty of practicing or attempting to practice under an assumed name or fails to use the title "doctor of chiropractic", chiropractic physician or the initials "D.C." in connection with the licensee's or applicant's practice or advertisements; (6) is guilty of failing to comply with any of underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 774 - the provisions of the Chiropractic Physician Practice Act or rules and regulations promulgated by the board and filed in accordance with the State Rules Act; (7) is guilty of willfully or negligently practicing beyond the scope of chiropractic practice as defined in the Chiropractic Physician Practice Act; (8) is guilty of advertising by means of knowingly false statements; (9) has been declared mentally incompetent by regularly constituted authorities or is manifestly incapacitated to practice chiropractic; (10) advertises or attempts to attract patronage in any unethical manner prohibited by the rules and regulations of the board; (11) is guilty of obtaining any fee by fraud or misrepresentation; (12) is guilty of making false or misleading statements regarding the licensee's or applicant's skill or the efficacy or value of treatment or remedy prescribed or administered by the licensee or applicant or at the licensee's or applicant's direction; (13) is guilty of aiding or abetting the practice of chiropractic by a person not licensed by the board; (14) has incurred a prior suspension or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 775 - revocation in another state where the suspension or revocation of a license to practice chiropractic was based upon acts by the licensee similar to acts described in this section and by board rules promulgated pursuant to Paragraph (6) of this subsection. A certified copy of the record of suspension or revocation of the state making such suspension or revocation is conclusive evidence thereof; (15) is guilty of making a false, misleading or fraudulent claim; or (16) is guilty of unprofessional conduct that includes but is not limited to the following: (a) procuring, aiding or abetting a criminal abortion; (b) representing to a patient that a manifestly incurable condition of sickness, disease or injury can be cured; (c) willfully or negligently divulging a professional confidence; (d) conviction of any offense punishable by incarceration in a state penitentiary or federal prison. A copy of the record of conviction, certified by the clerk of the court entering the conviction, is conclusive evidence; (e) impersonating another person licensed in the practice of chiropractic or permitting or allowing any person to use the licensee's or applicant's license; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 776 - (f) gross negligence in the practice of chiropractic; (g) fee splitting; (h) conduct likely to deceive, defraud or harm the public; (i) repeated similar negligent acts; (j) employing abusive billing practices; (k) failure to report to the board any adverse action taken against the licensee or applicant by: 1) another licensing jurisdiction; 2) any peer review body; 3) any health care entity; 4) any governmental agency; or 5) any court for acts or conduct similar to acts or conduct that would constitute grounds for action as provided in this section; (l) failure to report to the board surrender of a license or other authorization to practice chiropractic in another state or jurisdiction or surrender of membership on any chiropractic staff or in any chiropractic or professional association or society following, in lieu of, and while under disciplinary investigation by any of those authorities or bodies for acts or conduct similar to acts or conduct that would constitute grounds for action as provided in this section; (m) failure to furnish the board, its investigators or representatives with information requested by underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 777 - the board; (n) abandonment of patients; (o) failure to adequately supervise, as provided by board regulation, a chiropractic assistant or technician or professional licensee who renders care; (p) intentionally engaging in sexual contact with a patient other than the licensee's or applicant's spouse or domestic partner during the doctor- patient relationship; and (q) conduct unbecoming a person licensed to practice chiropractic or detrimental to the best interests of the public. B. The board may at its discretion hire investigators or issue investigative subpoenas for the purpose of investigating complaints made to the board regarding chiropractic physicians. C. All written and oral communication made by any person to the board or an agent of the board relating to actual or potential disciplinary action, including complaints made to the board, are confidential communications and are not public records for the purposes of the Inspection of Public Records Act; provided that all information contained in a complaint file is public information and subject to disclosure when the board acts on a complaint. D. Licensees shall bear all costs of disciplinary underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 778 - proceedings unless exonerated." Section 328. Section 61-5A-5 NMSA 1978 (being Laws 1994, Chapter 55, Section 5, as amended) is amended to read: "61-5A-5. LICENSE REQUIRED--EXEMPTIONS.-- A. Unless licensed to practice as a dentist under the Dental Health Care Act, no person shall: (1) practice dentistry; (2) use the title "dentist", "dental surgeon", "oral surgeon" or any other title, abbreviation, letters, figures, signs or devices that indicate the person is a licensed dentist; or (3) perform any of the acts enumerated under the definition of the practice of dentistry as defined in the Dental Health Care Act. B. The following, under the stipulations described, may practice dentistry or an area of dentistry without a New Mexico dental license: (1) regularly licensed physicians or surgeons are not prohibited from extracting teeth or treating any disease coming within the province of the practice of medicine; (2) New Mexico licensed dental hygienists may provide those services within their scope of practice that are also within the scope of the practice of dentistry; (3) any dental student duly enrolled in an underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 779 - accredited school of dentistry recognized by the board, while engaged in educational programs offered by the school in private offices, public clinics or educational institutions within the state of New Mexico under the indirect supervision of a licensed dentist; (4) any dental hygiene or dental assisting student duly enrolled in an accredited school of dental hygiene or dental assisting engaged in procedures within or outside the scope of dental hygiene that are part of the curriculum of that program in the school setting and under the indirect supervision of a faculty member of the accredited program who is a licensed dentist, dental hygienist or dental assistant certified in the procedures being taught; (5) unlicensed persons performing for a licensed dentist merely mechanical work upon inert matter in the construction, making, alteration or repairing of any artificial dental substitute, dental restorative or corrective appliance, when the casts or impressions for the work have been furnished by a licensed dentist and where the work is prescribed by a dentist pursuant to a written authorization by that dentist; (6) commissioned dental officers of the uniformed forces of the United States and dentists providing services to the United States public health service, the veterans' administration of the United States or within underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 780 - federally controlled facilities in the discharge of their official duties provided that such persons who hold dental licenses in New Mexico shall be subject to the provisions of the Dental Health Care Act; and (7) dental assistants performing adjunctive services to the provision of dental care, under the indirect supervision of a dentist, as determined by rule of the board if such services are not within the practice of dental hygiene as specifically listed in Subsection B of Section 61-5A-4 NMSA 1978, unless allowed in Subsection E of this section. C. Unless licensed to practice as a dental hygienist under the Dental Health Care Act, no person shall: (1) practice as a dental hygienist; (2) use the title "dental hygienist" or abbreviation "R.D.H." or any other title, abbreviation, letters, figures, signs or devices that indicate the person is a licensed dental hygienist; or (3) perform any of the acts defined as the practice of dental hygiene in the Dental Health Care Act. D. The following, under the stipulations described, may practice dental hygiene or the area of dental hygiene outlined without a New Mexico dental hygiene license: (1) students enrolled in an accredited dental hygiene program engaged in procedures that are part of the curriculum of that program and under the indirect supervision underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 781 - of a licensed faculty member of the accredited program; (2) dental assistants working under general supervision who: (a) expose dental radiographs after being certified in expanded functions by the board; (b) perform rubber cup coronal polishing, which is not represented as a prophylaxis, having satisfied the educational requirements as established by rules of the board; (c) apply fluorides as established by rules of the board; and (d) perform those other dental hygienist functions as recommended to the board by the committee and set forth by rule of the board; and (3) dental assistants certified in expanded functions, working under the indirect supervision of a dental hygienist certified for collaborative practice and under the protocols established in a collaborative practice agreement with a consulting dentist. E. Dental assistants working under the indirect supervision of a dentist and in accordance with the rules and regulations established by the board may: (1) expose dental radiographs; (2) perform rubber cup coronal polishing that is not represented as a prophylaxis; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 782 - (3) apply fluoride and pit and fissure sealants without mechanical alteration of the tooth; (4) perform those other dental hygienist functions as recommended to the board by the committee and set forth by rule of the board; and (5) perform such other related functions that are not expressly prohibited by statute or rules of the board. F. Unless licensed as a dentist or non-dentist owner, or as otherwise exempt from the licensing requirements of the Dental Health Care Act, no individual or corporate entity shall: (1) employ or contract with a dentist or dental hygienist for the purpose of providing dental or dental hygiene services as defined by their respective scopes of practice; or (2) enter into a managed care or other agreement to provide dental or dental hygiene services in New Mexico. G. The following, under stipulations described, may function as a non-dentist owner without a New Mexico license: (1) government agencies providing dental services within affiliated facilities; (2) government agencies engaged in providing public health measures to prevent dental disease; (3) spouses or domestic partners of deceased underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 783 - licensed dentists or dental hygienists for a period of one year following the death of the licensee; (4) accredited schools of dentistry, dental hygiene and dental assisting providing dental services solely in an educational setting; (5) dental hygienists licensed in New Mexico or corporate entities with a majority interest owned by a dental hygienist licensed in New Mexico; (6) federally qualified health centers, as designated by the United States department of health and human services, providing dental services; (7) nonprofit community-based entities and organizations that use public funds to provide dental and dental hygiene services for indigent persons; and (8) hospitals licensed by the department of health." Section 329. Section 61-6-15 NMSA 1978 (being Laws 1969, Chapter 46, Section 6, as amended by Laws 2008, Chapter 53, Section 12 and by Laws 2008, Chapter 54, Section 13) is amended to read: "61-6-15. LICENSE MAY BE REFUSED, REVOKED OR SUSPENDED-- LICENSEE MAY BE FINED, CENSURED OR REPRIMANDED--PROCEDURE-- PRACTICE AFTER SUSPENSION OR REVOCATION--PENALTY-- UNPROFESSIONAL AND DISHONORABLE CONDUCT DEFINED--FEES AND EXPENSES.-- underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 784 - A. The board may refuse to license and may revoke or suspend a license that has been issued by the board or a previous board and may fine, censure or reprimand a licensee upon satisfactory proof being made to the board that the applicant for or holder of the license has been guilty of unprofessional or dishonorable conduct. The board may also refuse to license an applicant who is unable to practice medicine, practice as a physician assistant or an anesthesiologist assistant, [or] practice genetic counseling or engage in the practice of polysomnography, pursuant to Section 61-7-3 NMSA 1978. All proceedings shall be as required by the Uniform Licensing Act or the Impaired Health Care Provider Act. B. The board may, in its discretion and for good cause shown, place the licensee on probation on the terms and conditions it deems proper for protection of the public, for the purpose of rehabilitation of the probationer or both. Upon expiration of the term of probation, if a term is set, further proceedings may be abated by the board if the holder of the license furnishes the board with evidence that the licensee is competent to practice, is of good moral character and has complied with the terms of probation. C. If evidence fails to establish to the satisfaction of the board that the licensee is competent and is of good moral character or if evidence shows that the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 785 - licensee has not complied with the terms of probation, the board may revoke or suspend the license. If a license to practice in this state is suspended, the holder of the license may not practice during the term of suspension. A person whose license has been revoked or suspended by the board and who thereafter practices or attempts or offers to practice in New Mexico, unless the period of suspension has expired or been modified by the board or the license reinstated, is guilty of a felony and shall be punished as provided in Section 61-6-20 NMSA 1978. D. "Unprofessional or dishonorable conduct", as used in this section, means, but is not limited to because of enumeration, conduct of a licensee that includes the following: (1) procuring, aiding or abetting a criminal abortion; (2) employing a person to solicit patients for the licensee; (3) representing to a patient that a manifestly incurable condition of sickness, disease or injury can be cured; (4) obtaining a fee by fraud or misrepresentation; (5) willfully or negligently divulging a professional confidence; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 786 - (6) conviction of an offense punishable by incarceration in a state penitentiary or federal prison or conviction of a misdemeanor associated with the practice of the licensee. A copy of the record of conviction, certified by the clerk of the court entering the conviction, is conclusive evidence; (7) habitual or excessive use of intoxicants or drugs; (8) fraud or misrepresentation in applying for or procuring a license to practice in this state or in connection with applying for or procuring renewal, including cheating on or attempting to subvert the licensing examinations; (9) making false or misleading statements regarding the skill of the licensee or the efficacy or value of the medicine, treatment or remedy prescribed or administered by the licensee or at the direction of the licensee in the treatment of a disease or other condition of the human body or mind; (10) impersonating another licensee, permitting or allowing a person to use the license of the licensee or practicing as a licensee under a false or assumed name; (11) aiding or abetting the practice of a person not licensed by the board; (12) gross negligence in the practice of a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 787 - licensee; (13) manifest incapacity or incompetence to practice as a licensee; (14) discipline imposed on a licensee by another state, including denial, probation, suspension or revocation, based upon acts by the licensee similar to acts described in this section. A certified copy of the record of suspension or revocation of the state making the suspension or revocation is conclusive evidence; (15) the use of a false, fraudulent or deceptive statement in a document connected with the practice of a licensee; (16) fee splitting; (17) the prescribing, administering or dispensing of narcotic, stimulant or hypnotic drugs for other than accepted therapeutic purposes; (18) conduct likely to deceive, defraud or harm the public; (19) repeated similar negligent acts; (20) employing abusive billing practices; (21) failure to report to the board any adverse action taken against the licensee by: (a) another licensing jurisdiction; (b) a peer review body; (c) a health care entity; underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 788 - (d) a professional or medical society or association; (e) a governmental agency; (f) a law enforcement agency; or (g) a court for acts or conduct similar to acts or conduct that would constitute grounds for action as defined in this section; (22) failure to report to the board surrender of a license or other authorization to practice in another state or jurisdiction or surrender of membership on any medical staff or in any medical or professional association or society following, in lieu of and while under disciplinary investigation by any of those authorities or bodies for acts or conduct similar to acts or conduct that would constitute grounds for action as defined in this section; (23) failure to furnish the board, its investigators or representatives with information requested by the board; (24) abandonment of patients; (25) being found mentally incompetent or insane by a court of competent jurisdiction; (26) injudicious prescribing, administering or dispensing of a drug or medicine; (27) failure to adequately supervise, as provided by board rule, a medical or surgical assistant or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 789 - technician or professional licensee who renders health care; (28) sexual contact with a patient or person who has authority to make medical decisions for a patient, other than the spouse or domestic partner of the licensee; (29) conduct unbecoming in a person licensed to practice or detrimental to the best interests of the public; (30) the surrender of a license or withdrawal of an application for a license before another state licensing board while an investigation or disciplinary action is pending before that board for acts or conduct similar to acts or conduct that would constitute grounds for action pursuant to this section; (31) sexual contact with a former mental health patient of the licensee, other than the spouse or domestic partner of the licensee, within one year from the end of treatment; (32) sexual contact with a patient when the licensee uses or exploits treatment, knowledge, emotions or influence derived from the previous professional relationship; (33) improper management of medical records, including failure to maintain timely, accurate, legible and complete medical records; (34) failure to provide pertinent and necessary medical records to a physician or patient of the physician in a timely manner when legally requested to do so by the patient underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 790 - or by a legally designated representative of the patient; (35) undertreatment of pain as provided by board rule; (36) interaction with physicians, hospital personnel, patients, family members or others that interferes with patient care or could reasonably be expected to adversely impact the quality of care rendered to a patient; (37) soliciting or receiving compensation by a physician assistant or anesthesiologist assistant from a person who is not an employer of the assistant; or (38) willfully or negligently divulging privileged information or a professional secret. E. As used in this section, "fee splitting" includes offering, delivering, receiving or accepting any unearned rebate, refunds, commission preference, patronage dividend, discount or other unearned consideration, whether in the form of money or otherwise, as compensation or inducement for referring patients, clients or customers to a person, irrespective of any membership, proprietary interest or co- ownership in or with a person to whom the patients, clients or customers are referred. F. Licensees whose licenses are in a probationary status shall pay reasonable expenses for maintaining probationary status, including laboratory costs when laboratory testing of biological fluids are included as a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 791 - condition of probation." Section 330. Section 61-17A-6 NMSA 1978 (being Laws 2003, Chapter 171, Section 6, as amended) is amended to read: "61-17A-6. BOARD CREATED--MEMBERSHIP.-- A. The "board of barbers and cosmetologists" is created. The board shall be administratively attached to the regulation and licensing department. The board shall consist of nine members appointed by the governor. Members shall serve three-year terms; provided that at the time of initial appointment, the governor shall appoint members to abbreviated terms to allow staggering of subsequent appointments. Vacancies shall be filled in the manner of the original appointment. B. Of the nine members of the board, five shall be licensed pursuant to the Barbers and Cosmetologists Act and shall have at least five years' practical experience in their respective occupations. Of those five, two members shall be licensed barbers, two members shall be licensed cosmetologists and one member shall represent school owners. Two members shall be licensed body artists pursuant to the Body Art Safe Practices Act and shall have at least five years in practice in their occupation. The remaining two members shall be public members. Neither the public members nor their spouses or domestic partners shall have ever been licensed pursuant to the provisions of the Barbers and Cosmetologists Act, the Body underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 792 - Art Safe Practices Act or similar prior legislation or have a financial interest in a school or establishment. C. Members of the board shall be reimbursed pursuant to the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance. D. The board shall elect from among its members a chair and such other officers as it deems necessary. The board shall meet at the call of the chair, not less than four times each year. A majority of members currently serving shall constitute a quorum for the conduct of business. E. No board member shall serve more than two full consecutive terms and any member who fails to attend, after proper notice, three meetings shall automatically be recommended for removal unless excused for reasons set forth by board regulation." Section 331. Section 61-27B-6 NMSA 1978 (being Laws 2007, Chapter 115, Section 6) is amended to read: "61-27B-6. PRIVATE INVESTIGATIONS ADVISORY BOARD-- CREATED--MEMBERS.-- A. The "private investigations advisory board" is created. B. The superintendent of regulation and licensing shall appoint members to the advisory board to assist in the conduct of the examination process for licensees and registrants and to assist the department in other manners as underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 793 - requested by the superintendent or provided for in rules of the department. C. The advisory board members shall consist of at least the following: (1) two private investigators; (2) one private patrol operator; (3) one polygraph examiner; and (4) one member of the public. D. Members of the advisory board shall be reimbursed pursuant to the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance for each day spent in the discharge of their duties. E. The public member of the advisory board or the public member's spouse or domestic partner shall not: (1) have been licensed pursuant to the Private Investigations Act, the Private Investigators and Polygraphers Act or any prior similar statutory provisions; or (2) have a direct or indirect financial interest in a private investigation company, private patrol company, polygraph business or a related business." Section 332. Section 61-29-11 NMSA 1978 (being Laws 1959, Chapter 226, Section 10, as amended) is amended to read: "61-29-11. ISSUANCE, RENEWAL AND SURRENDER OF LICENSES.-- A. The commission shall issue to each qualified underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 794 - applicant a license in the form and size prescribed by the commission. B. The license shall show the name and address of the licensee. An associate broker's license shall show the name of the qualifying broker by whom the associate broker is engaged. The commission shall deliver or mail the license of the associate broker to the qualifying broker by whom the associate broker is engaged, and the qualifying broker shall display the license at the brokerage from which the associate broker will be conducting real estate business on behalf of the brokerage. The license of the associate broker shall remain in the custody and control of the qualifying broker as long as the associate broker is engaged by that qualifying broker. C. Every license shall be renewed every three years on or before the last day of the month following the licensee's month of birth. Upon written request for renewal by the licensee, the commission shall certify renewal of a license if there is no reason or condition that might warrant the refusal of the renewal of a license. The licensee shall provide proof of compliance with continuing education requirements and pay the renewal fee. If a licensee has not made application for renewal of license, furnished proof of compliance with continuing education requirements and paid the renewal fee by the license renewal date, the license shall underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 795 - expire. The commission may require a person whose license has expired to apply for a license as if the person had not been previously licensed under Chapter 61, Article 29 NMSA 1978 and further require that the person be reexamined. The commission shall require a person whose license has expired to pay when the person applies for a license, in addition to any other fee, a late fee. If during a period of one year from the date the license expires the person or the person's spouse or domestic partner is either absent from this state on active duty military service or the person is suffering from an illness or injury of such severity that the person is physically or mentally incapable of making application for a license, payment of the late fee and reexamination shall not be required by the commission if, within three months of the person's permanent return to this state or sufficient recovery from illness or injury to allow the person to make an application, the person makes application to the commission for a license. A copy of that person's or that person's spouse's or domestic partner's military orders or a certificate from the applicant's physician shall accompany the application. A person excused by reason of active duty military service, illness or injury as provided for in this subsection may make application for a license without imposition of the late fee. All fees collected pursuant to this subsection shall be disposed of in accordance with the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 796 - provisions of Section 61-29-8 NMSA 1978. The revocation of a qualifying broker's license automatically suspends every associate broker's license granted to any person by virtue of association with the qualifying broker whose license has been revoked, pending a change of qualifying broker. Upon the naming of a new qualifying broker, the suspended license shall be reactivated without charge if granted during the three-year renewal cycle. D. A qualifying broker shall conduct brokerage business under the trade name and from the brokerage address registered with the commission. Every brokerage shall have a qualifying broker in charge. The license of the qualifying broker and each associate broker associated with that qualifying broker shall be prominently displayed in each brokerage office. The address of the office shall be designated in the qualifying broker's license, and a license issued shall not authorize the licensee to transact real estate business at any other address. In case of removal from the designated address, the licensee shall make application to the commission before the removal or within ten days thereafter, designating the new location of the licensee's office and paying the required fee, whereupon the commission shall issue a license for the new location if the new location complies with the terms of Chapter 61, Article 29 NMSA 1978. A qualifying broker shall maintain a sign at the brokerage underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 797 - office of such size and content as the commission prescribes. E. When an associate broker is discharged or terminates association or employment with the qualifying broker with whom the associate broker is associated, the qualifying broker shall deliver or mail the associate broker's license to the commission within forty-eight hours. The commission shall hold the license on inactive status. It is unlawful for an associate broker to perform any of the acts authorized by Chapter 61, Article 29 NMSA 1978 either directly or indirectly under authority of an inactive license after the associate broker's association with a qualifying broker has been terminated and the associate broker's license has been returned to the commission until the appropriate fee has been paid and the license has been reissued and reactivated by the commission." Section 333. Section 61-29-23 NMSA 1978 (being Laws 1980, Chapter 82, Section 4, as amended) is amended to read: "61-29-23. JUDGMENT AGAINST QUALIFYING OR ASSOCIATE BROKER--PETITION--REQUIREMENTS--RECOVERY LIMITATIONS.-- A. When any aggrieved person claims a pecuniary loss caused by a state-licensed qualifying broker or associate broker based upon fraud, knowing or willful misrepresentation or wrongful conversion of funds entrusted to the qualifying broker or associate broker, which loss arose out of any transaction for which a qualifying broker's or an associate underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 798 - broker's license is required and arose out of or during the course of a transaction involving the sale, lease, exchange or other disposition of real estate, where the cause of action arose on or after July 1, 1980, that person may, within one year after obtaining a final judgment based upon fraud, knowing or willful misrepresentation or wrongful conversion of funds entrusted to the qualifying broker or associate broker and the termination of all proceedings, including appeals in connection with the judgment, file a verified petition with the commission for payment from the real estate recovery fund for the actual damages included in the judgment and unpaid, but not more than ten thousand dollars ($10,000) per judgment regardless of the number of persons aggrieved or parcels of real estate involved in the transaction. The aggregate amount recoverable by all claimants for losses caused by any one licensee shall not exceed thirty thousand dollars ($30,000). B. A copy of the petition shall be served upon the commission in the manner provided by law for service of a civil summons. C. The commission shall conduct a hearing on the petition after service of the petition upon the commission. At the hearing, the petitioner shall be required to show that the petitioner: (1) is not the spouse or domestic partner of the judgment debtor, the personal representative of the spouse underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 799 - or domestic partner or related to the third degree of consanguinity or affinity to the licensee whose conduct is alleged to have caused the loss; (2) has complied with all the requirements of the Real Estate Recovery Fund Act; (3) has obtained a judgment of the kind described in Subsection A of this section, the amount awarded and the amount owing at the date of the petition; (4) has had execution issued upon the judgment and that the officer executing the writ has made a return showing that the judgment debtor has no property within the state subject to execution. If execution is levied against the property of the judgment debtor, the petitioner shall show that the amount realized on the sale was insufficient to satisfy the judgment and shall set forth the amount realized from the sale and the balance remaining due on the judgment after application of the amount realized; (5) has made reasonable searches and inquiries to ascertain whether the judgment debtor is possessed of real or personal property or other assets liable to be sold or applied in satisfaction of the judgment, including partnership assets, licensee's estate or any bond or insurance, and that the petitioner has exercised reasonable diligence to secure payment of the judgment from the assets of the judgment debtor; and underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 800 - (6) has a judgment that is not: (a) covered by any bond, insurance, surety agreement or indemnity agreement; (b) a loss incurred by a partner, joint venturer, employer, employee or associate of the licensee whose conduct is alleged to have caused the loss; or a corporate officer or director of a corporation in which the judgment debtor is also an officer, director or employee; or (c) a loss incurred by any business or other entity in which the licensee whose conduct is alleged to have caused the loss has any interest at the time of the conduct alleged to have caused the loss." Section 334. Section 61-32-19 NMSA 1978 (being Laws 1993, Chapter 204, Section 19, as amended) is amended to read: "61-32-19. CREMATION--REQUIREMENTS--RIGHT TO AUTHORIZE CREMATION--DISPOSITION OF CREMAINS.-- A. No cremation shall be performed until all necessary documentation is obtained authorizing the cremation. B. [Any] An adult person may authorize [his] the person's own cremation and the lawful disposition of [his cremated remains] the person's cremains by: (1) stating [his] the person's desire to be cremated in a written statement that is signed by the [individual] person and notarized or witnessed by two other persons; or underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 801 - (2) including an express statement in [his] the person's will indicating that the testator desired that [his] the testator's remains be cremated upon [his] the testator's death. C. A personal representative acting pursuant to the Uniform Probate Code or an establishment or crematory shall comply with a statement made in accordance with the provisions of this section. A statement that conforms to the provisions of this section authorizes a personal representative, establishment or crematory to cremate a decedent's remains and the permission of next of kin or any other person shall not be required for such authorization. Statements dated prior to June 18, 1993 shall be given effect if they meet this section's requirements. D. A personal representative, establishment or crematory acting in reliance upon a document executed pursuant to the provisions of this section, who has no actual notice of revocation or contrary indication, is presumed to be acting in good faith. E. No establishment, crematory or employee of an establishment or crematory or other person that relies in good faith on a statement written pursuant to this section shall be subject to liability for cremating the remains in accordance with the provisions of this section. The written authorization is a complete defense to a cause of action by underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 802 - [any] a person against any other person acting in accordance with that authorization. F. If a decedent has left no written instructions regarding the disposition of [his] the decedent's remains, the following persons in the order listed shall determine the means of disposition, not to be limited to cremation, of the remains of the decedent: (1) the surviving spouse or surviving domestic partner; (2) a majority of the surviving adult children of the decedent; (3) the surviving parents of the decedent; (4) a majority of the surviving siblings of the decedent; (5) an adult person who has exhibited special care and concern for the decedent, who is aware of the decedent's views and desires regarding the disposition of [his] the decendent's body and who is willing and able to make a decision about the disposition of the decedent's body; or (6) the adult person of the next degree of kinship in the order named by New Mexico law to inherit the estate of the decedent. G. A licensed establishment or crematory shall keep an accurate record of all cremations performed and the place of disposition of the cremains for a period of not less than underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 803 - seven years. H. Cremains may be disposed of by any licensed establishment, crematory authority, cemetery or person having the right to control the disposition of the cremains, or that person's agent, in a lawful manner. I. Legal forms for cremation authorization shall provide that persons giving the authorization will hold harmless an establishment from any liability for disposing of unclaimed cremains in a lawful manner after a period of one year following the return of the cremains to the establishment." Section 335. Section 61-32-20 NMSA 1978 (being Laws 1993, Chapter 204, Section 20, as amended) is amended to read: "61-32-20. EMBALMING.-- A. All dead human bodies not disposed of within twenty-four hours after death or release or receipt by the establishment or crematory shall be embalmed in accordance with the Thanatopractice Act or stored under refrigeration as determined by board rule, unless otherwise required by regulation of the office of the state medical investigator or the secretary of health or by orders of an authorized official of the office of the state medical investigator, a court of competent jurisdiction or other authorized official. B. A dead human body shall not be embalmed except by a funeral service practitioner, an associate funeral underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 804 - service practitioner or a funeral service intern under the supervision of a funeral service practitioner. C. When embalming is not required under the provisions of this section, a dead human body shall not be embalmed without express authorization by the: (1) surviving spouse, surviving domestic partner or next of kin; (2) legal agent or personal representative of the deceased; or (3) person assuming responsibility for final disposition. D. When embalming is not required and prior to obtaining authorization for the embalming, a dead human body may be washed and other health procedures, including closing of the orifices, may be performed without authorization. E. When a dead human body is embalmed, the funeral service practitioner or associate funeral service practitioner who embalms the body or the funeral service intern who embalms the body and the funeral service practitioner who supervises the embalming shall, within twenty-four hours after the embalming procedure, complete and sign an embalming case report describing the elapsed time since death, the condition of the remains before and after embalming and the embalming procedures used. The embalming case report shall be kept on file at the establishment for a period of not less than seven underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 805 - years following the embalming. F. Except as provided in Subsection A of this section, embalming is not required." Section 336. Section 62-15-3.1 NMSA 1978 (being Laws 2003, Chapter 416, Section 1) is amended to read: "62-15-3.1. SUBSIDIARY BUSINESS ACTIVITIES.-- A. Cooperatives may form, organize, acquire, hold, dispose of and operate any interest up to and including full controlling interest in separate business entities that provide energy services and products and telecommunications and communications services and products, including cable and satellite television and water and wastewater collection and treatment, without prior approval from the public regulation commission so long as those other business entities meet all of the following conditions: (1) the subsidiary is not financed with loans from the federal rural utilities service of the United States department of agriculture or the United States department of agriculture or with similar financing from any successor agency. This limitation shall not apply to rural utilities service loans or United States department of agriculture loans, or loans from successor agencies, to the extent the loan is to be used for a purpose authorized by the lending agency; (2) the subsidiary fully compensates the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 806 - cooperative for the use of personnel, services, equipment, tangible property and the cooperative's fully distributed costs, including all direct and indirect costs and the cost of capital incurred in providing the personnel, services, equipment or tangible property in question; (3) the total investments, loans, guarantees and pledges of assets of a cooperative in all of its subsidiaries shall not exceed twenty percent of the cooperative's assets; and (4) the subsidiary agrees to not offer any service or product to the public until it has obtained federal and state regulatory approvals, if any, required to provide the service or product to the public. B. A director, or spouse or domestic partner of a director, of a cooperative may not be employed or have any financial interest in a separate business entity formed, organized, acquired, held or operated by that cooperative pursuant to the provisions of this section. C. Should the public regulation commission, upon complaint showing reasonable grounds for investigation, find after investigation and public hearing that the charges for the transactions between the cooperative and other business entity do not conform with the provisions of this section, the public regulation commission is authorized to direct the cooperative to adjust those charges to comply with the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 807 - provisions of this section. If the cooperative does not comply with the public regulation commission's directive, the public regulation commission is authorized to direct the cooperative to divest its interest in the other business entity. For purposes of enforcing this section, members of the public regulation commission, and the public regulation commission staff, are authorized to inspect the books and records of such other business entities and the cooperatives, provided that proprietary or confidential data or information of the separate business entities shall not be disclosed to a third party. The public regulation commission shall adopt rules and reporting requirements to enforce the provisions of this section. D. Nothing in this section grants the public regulation commission the power to regulate a generation and transmission cooperative referred to in Section 62-6-4 NMSA 1978." Section 337. Section 62-15-9 NMSA 1978 (being Laws 1939, Chapter 47, Section 9, as amended) is amended to read: "62-15-9. BOARD OF TRUSTEES--SUITS.-- A. The business and affairs of a cooperative shall be managed by a board of not less than five trustees, each of whom shall be a member of the cooperative or of another cooperative, which shall be a member thereof. The bylaws shall prescribe the number of trustees, the terms of the underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 808 - trustees and the manner of their election by the members, their qualifications, other than those provided for in the Rural Electric Cooperative Act, the manner of holding meetings of the board of trustees and of the election of successors to trustees who resign, die or otherwise are incapable of acting. The bylaws may provide for the removal of trustees from office and for the election of their successors and for the classification of trustees by terms of office. Without approval of the members, trustees shall not receive any salaries for their services as trustees and, except in emergencies, shall not be employed by the cooperative in any capacity involving compensation. The bylaws may, however, provide that a fixed per diem fee and advancement, reimbursement or a per diem amount in lieu of reasonably incurred expenses may be allowed to each trustee for attendance at each meeting of the board of trustees and of a committee thereof and for the performance of other cooperative business when such has had prior approval of the board of trustees. B. The trustees of a cooperative named in any articles of incorporation, consolidation, merger or conversion shall hold office until the next following annual meeting of the members or until their successors have been elected and qualified. C. A majority of the board of trustees constitutes underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 809 - a quorum. D. If a husband and wife or domestic partners hold joint membership in a cooperative, either one, but not both, may be elected a trustee. E. If the bylaws so provide, the board of trustees, by resolution adopted by a majority of the full board of trustees, may designate from among its members an executive committee and one or more other committees, except no such committee shall have authority to take any action on behalf of the board of trustees to distribute patronage refunds or in any matter [which] that, under the articles of incorporation, bylaws or the Rural Electric Cooperative Act, requires the approval of the cooperative's members. Neither the designation of any such committee, the delegation thereto of authority nor action by such committee pursuant to such authority shall alone constitute compliance by any trustee not a member of the committee in question with the trustee's responsibility to act in accordance with the standard of conduct prescribed by [Subsection E of] this section. F. Unless otherwise provided in the bylaws, any action required by the Rural Electric Cooperative Act to be taken at a meeting of the board of trustees, or any action [which] that may be taken at a meeting of the board of trustees or of a committee, may be taken without a meeting if a consent in writing, setting forth the action so taken, underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 810 - [shall be] is signed by all of the trustees or all of the committee members, as the case may be. The consent shall have the same effect as a unanimous vote. G. The board of trustees may exercise all of the powers of a cooperative except such as are conferred upon the members by the Rural Electric Cooperative Act or its articles of incorporation or bylaws. H. No action shall be brought against a trustee as such or against the cooperative in its right unless the plaintiff was a member of record at the time of the transaction complained of and the complaint is verified and alleges with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the board of trustees and the reasons for the plaintiff's failure to obtain the action or for not making the effort. If the cooperative undertakes an investigation upon receipt of a demand by plaintiff for action, or following commencement of suit, the court may stay an action commenced as the circumstances reasonably require. If the court finds the action was brought without reasonable cause, it may require the plaintiff to pay defendants the reasonable expenses, including counsel fees, incurred by them in the defense of such action or to reimburse the cooperative for any indemnification provided a defendant pursuant to the Rural Electric Cooperative Act or the cooperative's bylaws." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 811 - Section 338. Section 62-15-31 NMSA 1978 (being Laws 1939, Chapter 47, Section 31, as amended) is amended to read: "62-15-31. RURAL AREA, PERSON AND MEMBER DEFINED.--As used in the Rural Electric Cooperative Act: A. "rural area" means any area not included within the boundaries of any municipality having a population in excess of five thousand persons; provided that a municipality having a population of more than five thousand persons shall not cease to be included within the term rural area if at the time of the commencement of the cooperative's or its predecessor's operation therein the population of the municipality was less than five thousand persons and the municipality has been and continues to be served by a cooperative; provided, however, that the population of any municipality shall not be included in any rural area if [said] the municipality has a municipally owned plant or other operating noncooperative utility; and provided further that any cooperative shall not be permitted to operate in any municipality without first having obtained a franchise from the governing authorities; B. "person" includes any natural person, firm, association, corporation, business trust, partnership, federal agency, state or political subdivision or agency thereof or any body politic; and C. "member" means each incorporator of a underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 812 - cooperative and each person admitted to and retaining membership [therein] in the cooperative and [shall include] includes a husband and wife or domestic partners admitted to a joint membership." Section 339. Section 66-3-411 NMSA 1978 (being Laws 1978, Chapter 99, Section 2, as amended) is amended to read: "66-3-411. SPECIAL REGISTRATION PLATES--PRISONERS OF WAR AND SURVIVING SPOUSES OR SURVIVING DOMESTIC PARTNERS-- SUBMISSION OF PROOF--PENALTY.-- A. The division shall issue distinctive registration plates to any person, or to the surviving spouse or surviving domestic partner of any deceased person, who was held as a prisoner of war by an enemy of the United States during any armed conflict, upon the submission by the person or surviving spouse or surviving domestic partner of proof satisfactory to the division that [he] the person was held as a prisoner of war by an enemy of the United States during a period of armed conflict or that [he] the person is the surviving spouse or surviving domestic partner of such a person. No fee, including the regular registration fee applicable to the passenger motor vehicle, if any, shall be collected for issuance of a special registration plate pursuant to this section. B. No person shall [falsely represent himself to have] make any false representation as to having been held as underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 813 - a prisoner of war or as to [be] being the surviving spouse or surviving domestic partner of a prisoner of war so as to be eligible to be issued special registration plates pursuant to this section when [he] the person in fact was not held as a prisoner of war or when [he] the person in fact is not the surviving spouse or surviving domestic partner of a prisoner of war. C. Any person who violates the provisions of Subsection B of this section is guilty of a misdemeanor." Section 340. Section 66-5-21.1 NMSA 1978 (being Laws 2005, Chapter 124, Section 1) is amended to read: "66-5-21.1. EFFECT OF MILITARY SERVICE ON DRIVER'S LICENSE.-- A. Unless the license is suspended, canceled or revoked as provided by law, a driver's license issued by this state that is held by a person who is on active duty in the armed forces of the United States and is absent from this state, or is in this state only on leave status, remains valid beyond the expiration date of the license. B. If the person benefiting from this section is reassigned to this state or is discharged from military service, the driver's license remains valid until the thirty- first day after the person's return to this state or discharge. C. A person benefiting from this section shall also underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 814 - show valid military identification or discharge documents when asked to show a driver's license. D. The provisions of this section also apply to a spouse or domestic partner accompanying a person benefiting from this section." Section 341. Section 66-12-17 NMSA 1978 (being Laws 1959, Chapter 338, Section 16) is amended to read: "66-12-17. OWNER'S CIVIL LIABILITY.--The owner of a vessel shall be liable for any injury or damage occasioned by the negligent operation of the vessel, whether the negligence consists of a violation of the provisions of the statutes of this state or neglecting to observe the ordinary care and operation that the rules of the common law require. The owner shall not be liable unless the vessel is being used with [his] the owner's express or implied consent. It shall be presumed that the vessel is being operated with the knowledge and consent of the owner if at any time of the injury or damage it is under the control of the spouse, domestic partner, father, mother, brother, sister, son, daughter or other immediate member of the owner's family. Nothing contained [herein] in this section shall be construed to relieve any other person from any liability [which he] that the person would otherwise have, but nothing contained [herein] in this section shall be construed to authorize or permit any recovery in excess of injury or damage actually incurred." underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR - 815 - Section 342. Section 73-2-42 NMSA 1978 (being Laws 1912, Chapter 36, Section 1, as amended) is amended to read: "73-2-42. BLIND PERSONS--FREE IRRIGATION.--The commissioners of any community ditch in New Mexico shall have power according to their discretion, if they deem it proper, to allow a blind person or [his] the blind person's surviving spouse or surviving domestic partner to irrigate free of charge any portion of land not to exceed three acres; provided that the parties to whom the privilege may be granted [as herein stated shall] have an interest and water right in the ditch and shall be subject to the use of the water as per the orders of the mayordomo or superintendent of the ditch." Section 343. Section 73-18-32 NMSA 1978 (being Laws 1955, Chapter 281, Section 8, as amended) is amended to read: "73-18-32. VOTING RIGHTS.-- A. In district precinct elections, landowners owning one acre of irrigable land shall be entitled to one vote for each acre of irrigable land or major fraction [thereof] of an acre owned by the landowner up to one hundred sixty acres. Landowners owning less than one acre of irrigable land have no vote. A landowner may vote in all voting precincts in which [he] the landowner has irrigable land, entitling [him] the landowner to vote as provided in Sections 73-18-30 and 73-18-31 NMSA 1978. B. For director-at-large, all persons who are over underscored material = new [bracketed material] = delete 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .179346.5GR the age of eighteen and who have been the owners of real estate within the district for more than one month preceding the election shall be entitled to one vote. C. All persons who are over the age of eighteen and who have been the owners of real estate within any municipality within the district for more than one month preceding the election shall be entitled to one vote for director representing the municipal election precinct. D. To qualify voters to vote for directors-at-large and for director representing the municipal voting precinct, the ownership of real estate by the spouse or domestic partner shall be considered also ownership by the other spouse or other domestic partner." Section 344. SAVING CLAUSE.--This act shall not adversely affect any other manner in which relationships between adults may be recognized or given effect in New Mexico or the legal consequences of those relationships. Section 345. SEVERABILITY.--If any part or application of this act is held invalid, the remainder or its application to other situations or persons shall not be affected. - 816 -