Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance

committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports

if they are used for other purposes.

Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (legis.state.nm.us).

Adobe PDF versions include all attachments, whereas HTML versions may not. Previously issued FIRs and

attachments may be obtained from the LFC in Suite 101 of the State Capitol Building North.

F I S C A L I M P A C T R E P O R T

SPONSOR

Grubesic

ORIGINAL DATE

LAST UPDATED

1/19/07

HB

SHORT TITLE

Enhance Felony Sentences

SB

4

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

Recurring

General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

REVENUE (dollars in thousands)

Estimated Revenue

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

FY09

Unable to determine Unable to determine Recurring Current School

Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Attorney Generals Office (AGO)

No Response Received From

Administrative Office of the District Attorneys (AODA)

Public Defender Department (PDD)

SUMMARY

Synopsis of Bill

Senate Bill 4 states that when a jury finds that a felony committed by a public official “relates to,

arises out of or is in connection with" public office, the sentence may be increased by an

Senate Bill 4 – Page

2

additional fine not to exceed the salary and benefits paid to the offender after commission of the

first act that was the basis for the felony conviction.

FISCAL IMPLICATIONS

The additional penalties would be considered a “fine", and would be directed into the Current

School Fund pursuant to Article XII Section 4 of the New Mexico Constitution.

Any fiscal impact on the judiciary would be proportional to the enforcement of this law and

commenced prosecutions. There may be an increase in the amount of work that needs to be done

by the courts, thus requiring additional resources to handle increase. The unusual fine provision

can be expected to encourage those prosecuted under this provision to seek trial or otherwise

defend the charge or charges even more vigorously than they would otherwise, adding some

unknown burden to the court system. However, it is unlikely that this sentence enhancement for

public corruption cases will apply to a broad number of cases in any given year, reducing the

likelihood of any significant impact on the courts’ fiscal operations.

SIGNIFICANT ISSUES

The Governmental Conduct Act, NMSA 10-16-4 1978 comp. provides that a public officer or

employee taking an official act for the purpose of enhancing a financial interest is guilty of a

fourth degree felony. Further, NMSA sections 30-23-1 to 30-23-7 also impose criminal penalties

for certain acts committed while holding public office or employment. However, the enhanced

penalty provisions of this bill are not contingent upon conviction of crimes regulating official

conduct which are already in law. The terms “relates to, arises out of, or is in connection with"

the offender’s holding of an elected office may be deemed vague as not specifying the conduct

which might lead to the enhanced penalties.

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)

: states

“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable

doubt."

Conceivably, defense counsel could argue that a separate hearing is required before the

additional penalty could be imposed.

The bill only applies to offices covered by the Campaign Reporting Act, NMSA 1-19-25 to 1-19-

36 1978 comp. That act applies to “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". NMSA 1-19-26 H. Technically, the Campaign Reporting

Act governs elections for certain offices, but does not govern the conduct of the officials within

those offices.

ADMINISTRATIVE IMPLICATIONS

There may be a minimal administrative impact on the courts as the result of an increase in

caseload and/or in the amount of time necessary to dispose of cases.

Senate Bill 4 – Page

3

TECHNICAL ISSUES

The bill does not provide for convictions on multiple counts. It refers to the value of the salary

and fringe benefits paid after the “commission of the first act that was the basis for the felony

conviction". If separate acts lead to separate convictions, the “value" of the salary and fringe

benefits could conceivably be multiplied under the language of this bill. This may be an

ambiguity that should be addressed expressly in the bill. The penalty described in the bill would

be in addition to any existing statutory penalties.

Presumably the State Department of Finance and General Services Department would have to

value fringe benefits and provide that information to the convicting Court. This could present an

added complication.

ALTERNATIVES

Because of the difficulty in determining the “value" of salary and fringe benefits paid, the

commission of a felony relating to holding public office could be considered an “aggravating

circumstance", and the court could be given discretion to impose an additional penalty based

upon doubling or tripling the statutory penalty for the given offense. Those penalties are already

set forth in NMSA 31-18-15 1978 comp.

The bill could also expressly amend current sections of law prohibiting conduct by officials and

employees to enhance the penalties specified in those laws.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

Those convicted of a felony related to corruption in public office will remain subject only to the

punishments provided for the felony and will not face the prospect of an additional fine up to the

amount of pay and benefits paid to the office holder from the time of the first act resulting in the

conviction.

EO/csd