SENATE BILL 134

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Crystal R. Diamond and Luis Terrazas and Siah Correa Hemphill

 

 

 

 

 

AN ACT

RELATING TO COURTS; PROVIDING THAT IN THE ABSENCE OF A PROBATE JUDGE, A PROBATE JUDGE OF ANOTHER COUNTY MAY HOLD COURT IN THE UNAVAILABLE JUDGE'S COUNTY; REQUIRING THE COUNTY TO PROVIDE REIMBURSEMENT FOR PER DIEM AND MILEAGE.

 

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

     SECTION 1. Section 34-7-11 NMSA 1978 (being Laws 1933, Chapter 101, Section 1, as amended) is amended to read:

     "34-7-11. DISTRICT JUDGE--PROBATE POWERS.--

          A. Whenever the probate judge [shall be] is absent from the county [wherein he] in which the probate judge was elected or [shall be] is incapacitated or otherwise unable to attend to [his] the probate judge's duties [from] for any cause [whatsoever], any district judge of [said] that county, or any other district judge designated to hold court in [said] that county, [for him] may do [any and] all things that could otherwise be done by [said] the unavailable probate judge, without the necessity of having the matters or proceedings transferred from the docket of the probate court to the docket of the district court. The fact of [such] the absence or incapacity of the unavailable probate judge shall be recited in every order of the district judge entered in accordance with this [act] section.

          B. Whenever the probate judge is absent from the county in which the probate judge was elected or is incapacitated or otherwise unable to attend to the probate judge's duties for any cause, a probate judge of another county may do all things that could otherwise be done by the unavailable probate judge when designated by the unavailable probate judge in accordance with the provisions of Subsection C of this section or with approval by the board of county commissioners, or the equivalent governing body if a different form of county governance is in place, of the county of the unavailable probate judge. The visiting probate judge fulfilling the duties of the unavailable probate judge shall hold court in the location designated in the county seat of the county of the unavailable probate judge. The fact of the absence or incapacity of the probate judge of the county shall be recited in every order of the visiting probate judge entered in accordance with this section, and the visiting judge shall sign the order as the visiting probate judge. The county of the unavailable probate judge shall reimburse any visiting probate judge for per diem and mileage pursuant to the Per Diem and Mileage Act.

          C. A probate judge that is anticipating an extended absence may designate whether a district judge or visiting probate judge will fulfill the absent probate judge's responsibilities during the judge's absence. When the probate judge is incapacitated and absent or when the probate judge fails to designate a judge to fulfill the judge's responsibilities during an absence, the board of county commissioners of the county of the unavailable and incapacitated probate judge, or the equivalent governing body if a different form of county governance is in place, shall determine whether a district judge or visiting probate judge will fulfill the unavailable probate judge's duties. Any selection of a district judge or a visiting probate judge by an unavailable probate judge pursuant to this subsection shall comply with the provisions of Subsections A and B of this section."

     SECTION 2. Section 45-1-307 NMSA 1978 (being Laws 1975, Chapter 257, Section 1-307) is amended to read:

     "45-1-307. PROBATE COURT--POWERS.--If for any reason the probate judge is unable to act, the acts and orders [which] that the Uniform Probate Code specifies as performable by the probate court may be performed [either] by a visiting probate judge from another county, a judge of the district court serving the county of the unavailable probate judge or by a person designated by the district court [by] as the probate judge pro tem in a written order filed and recorded in the office of the clerk of the district court. The county of the unavailable probate judge shall reimburse any visiting probate judge for per diem and mileage pursuant to the provisions of the Per Diem and Mileage Act."

     SECTION 3. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2021.

- 4 -