SB0165JUS

SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR

SENATE BILL 165

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

AN ACT

RELATING TO DELINQUENCY; REQUIRING THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT TO IMPRISON A CONVICTED SERIOUS YOUTHFUL OFFENDER UNTIL THE OFFENDER IS TRANSFERRED TO A CORRECTIONS FACILITY UPON REACHING TWENTY-ONE YEARS OF AGE AND PROVIDING EXCEPTIONS; AMENDING THE DELINQUENCY ACT; CHANGING THE DEFINITIONS FOR "SERIOUS YOUTHFUL OFFENDER" AND "YOUTHFUL OFFENDER"; PROVIDING THAT A CHILDREN'S COURT ATTORNEY MAY REFER A CHILD BACK TO JUVENILE PROBATION SERVICES IF A DELINQUENCY PETITION IS NOT FILED AGAINST THE CHILD; REQUIRING VALIDATION OF AND REPORTING ON THE DETENTION RISK ASSESSMENT INSTRUMENT; EXTENDING THE TERMS OF COMMITMENT FOR DELINQUENT OFFENDERS; EXTENDING THE TERMS OF COMMITMENT FOR YOUTHFUL OFFENDERS SUBJECT TO JUVENILE SANCTIONS; REQUIRING THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT TO IMPRISON A YOUTHFUL OFFENDER GIVEN AN ADULT SENTENCE UNTIL THE OFFENDER IS TRANSFERRED TO A CORRECTIONS FACILITY UPON REACHING TWENTY-ONE YEARS OF AGE AND PROVIDING EXCEPTIONS; REQUIRING TOLLING OF A SUPERVISED RELEASE TERM IF A CHILD ABSCONDS FROM SUPERVISED RELEASE; AMENDING THE JUVENILE COMMUNITY CORRECTIONS ACT; DEFINING NEW TERMS; CLARIFYING THAT QUALIFIED GRANTEES MAY PROVIDE SERVICES TO PERSONS OTHER THAN PERSONS ADJUDICATED PURSUANT TO THE DELINQUENCY ACT; PROVIDING THAT QUALIFIED GRANTEES SHALL PRIORITIZE SERVICES FOR JUSTICE-INVOLVED YOUTH; REQUIRING THAT A GRANTEE'S COMMUNITY CORRECTIONS PROGRAM BE EVIDENCE- OR RESEARCH-BASED AND INCORPORATE BEST PRACTICES IN RISK REDUCTION; MAKING TECHNICAL AND CONFORMING AMENDMENTS.

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

SECTION 1. Section 31-18-15.2 NMSA 1978 (being Laws 1993, Chapter 77, Section 1, as amended) is amended to read:

"31-18-15.2. DEFINITIONS.--As used in the Criminal Sentencing Act:

A. "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; and] a person alleged to be a serious youthful offender in accordance with the Delinquency Act;

B. "serious youthful offender offense" means:

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

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

(3) shooting at a dwelling or occupied building that results in great bodily harm to another person or shooting from a motor vehicle that results in great bodily harm to another person, as provided in Section 30-3-8 NMSA 1978; and

[B.] C. "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 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;

(d) aggravated battery, as provided in Subsection C of Section 30-3-5 NMSA 1978;

(e) aggravated battery upon a peace officer, as provided in Subsection C of Section 30-22-25 NMSA 1978;

(f) shooting at a dwelling or occupied building or shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978;

(g) dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978;

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

(i) robbery, as provided in Section 30-16-2 NMSA 1978;

(j) aggravated burglary, as provided in Section 30-16-4 NMSA 1978;

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

(l) 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 and 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 is not considered a prior adjudication for the purposes of this paragraph; or

(3) fourteen years of age and adjudicated for first degree murder, as provided in Section 30-2-1 NMSA 1978] a person adjudicated as a youthful offender in accordance with the Delinquency Act."

SECTION 2. Section 31-18-15.3 NMSA 1978 (being Laws 1993, Chapter 77, Section 3, as amended) is amended to read:

"31-18-15.3. SERIOUS YOUTHFUL OFFENDER--DISPOSITION.--

A. [An alleged] A serious youthful offender may be detained in any of the following places, prior to arraignment in metropolitan, magistrate or district court:

(1) a detention facility for delinquent children, licensed by the children, youth and families department;

(2) any other suitable place, other than a facility for the care and rehabilitation of delinquent children, that meets standards for detention facilities, as set forth in the Children's Code and federal law; or

(3) a county jail, only if a facility described in Paragraph (1) or (2) of this subsection is not appropriate.

B. [When an alleged] If a serious youthful offender is detained in a juvenile detention facility prior to trial, the time spent in the juvenile detention facility shall count toward completion of any sentence imposed.

C. At arraignment, [when] if a metropolitan or district court judge or a magistrate determines that an alleged serious youthful offender should remain in custody, the [alleged] serious youthful offender may be detained in an adult or juvenile detention facility, subject to the facility's accreditation and the provisions of applicable federal law.

D. [When an alleged] If a serious youthful offender is [found guilty of first degree murder] convicted of a serious youthful offender offense, the court shall sentence the offender pursuant to the provisions of the Criminal Sentencing Act; provided that a serious youthful offender given an adult sentence shall not be sentenced to life imprisonment without the possibility of release or parole. The court may sentence the offender to less than, but not exceeding, the mandatory term for an adult. The determination of guilt becomes a conviction for purposes of the Criminal Sentencing Act.

E. Prior to the sentencing of [an alleged] a serious youthful offender who is convicted of [first degree murder] a serious youthful offender offense, adult probation services shall prepare a presentence report and submit the report to the court and the parties five days prior to the sentencing hearing.

F. [When the alleged] If a serious youthful offender is convicted of a lesser offense than [first degree murder] a serious youthful offender offense, the court shall provide for disposition of the offender pursuant to the provisions of Section 32A-2-19 or 32A-2-20 NMSA 1978. [When] If an offender is adjudicated as a delinquent child, the [conviction] adjudication shall not be used as a conviction for purposes of the Criminal Sentencing Act.

G. A serious youthful offender who is convicted of a serious youthful offender offense and sentenced to imprisonment shall be imprisoned at a facility for the care and rehabilitation of adjudicated delinquent children operated by the children, youth and families department until the serious youthful offender reaches twenty-one years of age, at which time the serious youthful offender shall be transferred to a corrections facility operated by the corrections department for the remainder of the sentence; provided that a serious youthful offender who is eighteen years of age or older may be transferred to a corrections facility before the age of twenty-one if the serious youthful offender commits a violent offense while imprisoned at the facility for the care and rehabilitation of adjudicated delinquent children and the children, youth and families department has conducted a review of the commission of the violent offense, held a hearing with sufficient procedural safeguards and determined that the:

(1) serious youthful offender poses a substantial and continuing danger to the children at the facility for the care and rehabilitation of adjudicated delinquent children; and

(2) children, youth and families department has no alternative safe placements for or safety interventions to provide the serious youthful offender.

H. The children, youth and families department and the corrections department shall promulgate rules for the transfer of a serious youthful offender to a corrections facility in accordance with Subsection G of this section."

SECTION 3. 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, not including a violation of Section 30-9-2 NMSA 1978, including the following offenses:

(1) any of the following offenses pursuant 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;

(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 restaurant or a licensed retail liquor establishment, except in the presence of the child's parent, guardian, custodian or adult spouse. 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 unit 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;

(7) a violation of an order of protection issued pursuant to the provisions of the Family Violence Protection Act; or

(8) trafficking cannabis as provided in Section 26-2C-28 NMSA 1978;

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 a 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 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] is not a delinquent child and means a person fifteen to eighteen years of age who is indicted or charged and bound over for trial for:

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

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

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 in Section 30-2-1 NMSA 1978;

(b)] (a) assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978;

[(c)] (b) kidnapping, as provided in Section 30-4-1 NMSA 1978;

[(d)] (c) aggravated battery, as provided in Subsection C of Section 30-3-5 NMSA 1978;

[(e)] (d) aggravated battery against a household member, as provided in Subsection C of Section 30-3-16 NMSA 1978;

[(f)] (e) aggravated battery upon a peace officer, as provided in Subsection C of Section 30-22-25 NMSA 1978;

[(g)] (f) shooting at a dwelling or occupied building that does not result in great bodily harm to another person or shooting at or from a motor vehicle that does not result in great bodily harm to another person, as provided in Section 30-3-8 NMSA 1978;

[(h)] (g) dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978;

[(i)] (h) criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;

[(j)] (i) robbery, as provided in Section 30-16-2 NMSA 1978;

[(k)] (j) aggravated burglary, as provided in Section 30-16-4 NMSA 1978;

[(l)] (k) aggravated arson, as provided in Section 30-17-6 NMSA 1978; [or

(m)] (l) abuse of a child that results in great bodily harm or death to the child, as provided in Section 30-6-1 NMSA 1978; or

(m) voluntary manslaughter, as provided in Section 30-2-3 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; provided that the felony adjudications relied upon as prior adjudications shall not [have arisen out of] arise from the same transaction or occurrence or series of events related in time and location; and provided further that successful completion of consent decrees is 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]:

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

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

(c) shooting at a dwelling or occupied building that results in great bodily harm to another person or shooting at or from a motor vehicle that results in great bodily harm to another person, as provided in Section 30-3-8 NMSA 1978."

SECTION 4. Section 32A-2-7 NMSA 1978 (being Laws 1993, Chapter 77, Section 36, as amended) is amended to read:

"32A-2-7. COMPLAINTS--REFERRAL--PRELIMINARY INQUIRY--NOTICE--TIME WAIVER.--

A. Complaints alleging delinquency shall be referred to probation services, which shall conduct a preliminary inquiry to determine the best interests of the child and of the public with regard to any action to be taken.

B. During the preliminary inquiry on a delinquency complaint, the matter may be referred to another appropriate agency and conferences may be conducted for the purpose of effecting adjustments or agreements that will obviate the necessity for filing a petition. At the commencement of the preliminary inquiry, the parties shall be advised of their basic rights pursuant to Section 32A-2-14 NMSA 1978, and no party may be compelled to appear at any conference, to produce any papers or to visit any place. The child shall be informed of the child's right to remain silent. The preliminary inquiry shall be completed within the time limits set forth in the Children's Court Rules.

C. Prior to a preliminary inquiry being conducted with a child who is detained, the child's parent, guardian or custodian or the child's attorney shall be given reasonable notice by the juvenile probation and parole officer and an opportunity to be present at the preliminary inquiry. If a child is not detained, the preliminary inquiry shall be conducted within thirty days of receipt of the referral from law enforcement. The thirty-day time period may be extended upon a determination by the department that an extension is necessary to conduct a thorough preliminary inquiry and that the extension is not prejudicial to the best interests of the child.

D. When a child is in detention or custody and the children's court attorney does not file a petition within the time limits authorized by the Children's Court Rules, the child shall be released immediately. If a child is not detained and a determination is made to file a petition, the petition shall be filed within sixty days of completion of the preliminary inquiry, unless a motion is granted to extend the time limit for good cause shown. If a child is not in custody or detention, a petition shall not be dismissed for failure to comply with the time limit set forth in this subsection unless there is a showing of prejudice to the child.

E. After completion of the preliminary inquiry on a delinquency complaint involving a misdemeanor, probation services may notify the children's court attorney and recommend an appropriate disposition for the case. If the child has been referred for three or more prior misdemeanors within two years of the instant offense, probation services shall notify the children's court attorney and recommend an appropriate disposition for the case.

F. Probation services shall notify the children's court attorney of the receipt of any complaint involving an act that constitutes a felony under the applicable criminal law. Probation services shall also recommend a disposition to the children's court attorney.

G. The child, through counsel, and the children's court attorney may agree, without judicial approval, to a waiver of time limitations imposed after a petition is filed. A time waiver defers adjudication of the charges. The children's court attorney may place restrictions on a child's behavior as a condition of a time waiver. If the child completes the agreed upon conditions and no new charges are filed against the child, the pending petition shall be dismissed. If the children's court attorney files a new petition against the child, the children's court attorney may proceed on both the original petition and the new charges. The department shall become a party if probation services are requested as a condition of the time waiver.

H. After a preliminary inquiry, if the children's court attorney reviews a case and decides not to file a delinquency petition, the children's court attorney may refer the case back to juvenile probation services and recommend an appropriate disposition."

SECTION 5. Section 32A-2-11 NMSA 1978 (being Laws 1993, Chapter 77, Section 40, as amended) is amended to read:

"32A-2-11. CRITERIA FOR DETENTION OF CHILDREN.--

A. Unless otherwise ordered by the court pursuant to the provisions of the Delinquency Act, a child taken into custody for an alleged delinquent act [shall not] may be placed in detention [unless] only if a detention risk assessment [instrument] is completed and a determination is made that the child:

(1) poses a substantial risk of harm to [himself] the child's self;

(2) poses a substantial risk of harm to others; or

(3) has demonstrated that [he] the child may leave the jurisdiction of the court.

B. [The criteria for detention in this section shall govern the decisions of all persons responsible for determining whether detention is appropriate prior to a detention hearing, based upon review of the detention risk assessment instrument] The provisions of Subsection A of this section apply to all circumstances in which a child may be detained before a detention hearing.

C. The department shall develop, validate and implement a detention risk assessment instrument. The department shall collect and analyze data regarding the application [of the detention risk assessment instrument. On January 1, 2004, the department shall provide the legislature with a written report with respect to its collection and analysis of data regarding the application] and effectiveness of the detention risk assessment instrument. At least once every three years, the department shall update the detention risk assessment instrument based on the collected data, as necessary.

D. On or before September 1 of each year, the department shall provide a written report to the legislature on the application and effectiveness of the detention risk assessment instrument. If applicable, the report shall explain the validation of the instrument and updates made to the instrument."

SECTION 6. Section 32A-2-19 NMSA 1978 (being Laws 1993, Chapter 77, Section 48, as amended) is amended to read:

"32A-2-19. DISPOSITION OF AN ADJUDICATED DELINQUENT OFFENDER.--

A. At the conclusion of the dispositional hearing, the court may make and include in the dispositional judgment its findings on the following:

(1) the interaction and interrelationship of the child with the child's parents and siblings and any other person who may significantly affect the child's best interests;

(2) the child's adjustment to the child's home, school and community;

(3) the mental and physical health of all individuals involved, including consideration of such factors as the child's brain development, maturity, trauma history and disability;

(4) the wishes of the child as to the child's custodian;

(5) the wishes of the child's parents as to the child's custody;

(6) whether there exists a relative of the child or other individual who, after study by the department, is found to be qualified to receive and care for the child;

(7) the availability of services recommended in the predisposition report; and

(8) the ability of the parents to care for the child in the home.

B. If a child is found to be delinquent, the court may enter its judgment making any of the following dispositions for the supervision, care and rehabilitation of the child:

(1) transfer legal custody to the department, an agency responsible for the care and rehabilitation of delinquent children, which shall receive the child at a facility designated by the secretary of the department as a juvenile reception facility. The department shall thereafter determine the appropriate placement, supervision and rehabilitation program for the child. The judge may include recommendations for placement of the child. Commitments are subject to limitations and modifications set forth in Section 32A-2-23 NMSA 1978. The types of commitments include:

(a) a short-term commitment [of one year] for no more than eighteen months in a facility for the care and rehabilitation of adjudicated delinquent children; provided that no more than [nine] twelve months shall be served at the facility and no less than [ninety] one hundred eighty days shall be served on supervised release, unless: 1) a petition to extend the commitment has been filed prior to the commencement of supervised release; 2) the commitment has been extended pursuant to Section 32A-2-23 NMSA 1978; or 3) supervised release is revoked pursuant to Section 32A-2-25 NMSA 1978;

(b) a long-term commitment for no more than [two years] thirty months in a facility for the care and rehabilitation of adjudicated delinquent children; provided that no more than [twenty-one] twenty-four months shall be served at the facility and no less than [ninety] one hundred eighty days shall be served on supervised release, unless: 1) supervised release is revoked pursuant to Section 32A-2-25 NMSA 1978; or 2) the commitment is extended pursuant to Section 32A-2-23 NMSA 1978;

(c) if the child is a delinquent offender who committed one of the criminal offenses set forth in Subsection J of Section 32A-2-3 NMSA 1978, a commitment to age twenty-one, unless sooner discharged; or

(d) if the child is a youthful offender, a commitment to age twenty-one, unless sooner discharged;

(2) place the child on probation under those conditions and limitations as the court may prescribe;

(3) place the child in a local detention facility that has been certified in accordance with the provisions of Section 32A-2-4 NMSA 1978 for a period not to exceed fifteen days within a three hundred sixty-five day time period; or if a child is found to be delinquent solely on the basis of Paragraph (3) of Subsection A of Section 32A-2-3 NMSA 1978, the court shall only enter a judgment placing the child on probation or ordering restitution or both; or

(4) if a child is found to be delinquent solely on the basis of Paragraph (2), (3) or (4) of Subsection A of Section 32A-2-3 NMSA 1978, the court may make any disposition provided by this section and may enter its judgment placing the child on probation and, as a condition of probation, transfer custody of the child to the department for a period not to exceed six months without further order of the court; provided that this transfer shall not be made unless the court first determines that the department is able to provide or contract for adequate and appropriate treatment for the child and that the treatment is likely to be beneficial.

C. When the child is an Indian child, the Indian child's cultural needs shall be considered in the dispositional judgment and reasonable access to cultural practices and traditional treatment shall be provided.

D. A child found to be delinquent shall not be committed or transferred to a penal institution or other facility used for the execution of sentences of persons convicted of crimes.

E. Whenever the court vests legal custody in an agency, institution or department, it shall transmit with the dispositional judgment copies of the clinical reports, predisposition study and report and other information it has pertinent to the care and treatment of the child.

F. Prior to any child being placed in the custody of the department, the department shall be provided with reasonable oral or written notification and an opportunity to be heard.

G. In addition to any other disposition pursuant to Subsection B of this section, the court may make an abuse or neglect report for investigation and proceedings as provided for in the Abuse and Neglect Act. The report may be made to a local law enforcement agency, the department or a tribal law enforcement or social service agency for an Indian child residing in Indian country.

H. In addition to any other disposition pursuant to this section or any other penalty provided by law, if a child who is fifteen years of age or older is adjudicated delinquent on the basis of Paragraph (2), (3) or (4) of Subsection A of Section 32A-2-3 NMSA 1978, the child's driving privileges may be denied or the child's driver's license may be revoked for a period of ninety days. For a second or a subsequent adjudication, the child's driving privileges may be denied or the child's driver's license revoked for a period of one year. Within twenty-four hours of the dispositional judgment, the court may send to the motor vehicle division of the taxation and revenue department the order adjudicating delinquency. Upon receipt of an order from the court adjudicating delinquency, the director of the motor vehicle division of the taxation and revenue department may revoke or deny the delinquent's driver's license or driving privileges. Nothing in this section may prohibit the delinquent from applying for a limited driving privilege pursuant to Section 66-5-35 NMSA 1978 or an ignition interlock license pursuant to the Ignition Interlock Licensing Act, and nothing in this section precludes the delinquent's participation in an appropriate educational, counseling or rehabilitation program.

I. In addition to any other disposition pursuant to this section or any other penalty provided by law, when a child is adjudicated delinquent on the basis of Paragraph (6) of Subsection A of Section 32A-2-3 NMSA 1978, the child shall perform the mandatory community service set forth in Section 30-15-1.1 NMSA 1978. When a child fails to completely perform the mandatory community service, the name and address of the child's parent or legal guardian shall be published in a newspaper of general circulation, accompanied by a notice that the parent or legal guardian is the parent or legal guardian of a child adjudicated delinquent for committing graffiti."

SECTION 7. Section 32A-2-20 NMSA 1978 (being Laws 1993, Chapter 77, Section 49, as amended) is amended to read:

"32A-2-20. DISPOSITION OF A YOUTHFUL OFFENDER.--

A. The court has the discretion to [invoke] impose either an adult sentence or juvenile sanctions on a youthful offender. The children's court attorney shall file a notice of intent to [invoke] request an adult sentence within ten working days of the filing of the petition; provided that the court may extend the time for filing of the notice of intent to [invoke] request an adult sentence, for good cause shown, prior to the adjudicatory hearing. A preliminary hearing by the court or a hearing before a grand jury shall be held, within ten days after the filing of the intent to [invoke] request an adult sentence, to determine whether probable cause exists to support the allegations contained in the petition.

B. If the children's court attorney has filed a notice of intent to [invoke] request an adult sentence and the child is adjudicated as a youthful offender, the court shall make the following findings in order to [invoke] impose an adult sentence:

(1) the child is not amenable to treatment or rehabilitation as a child in available facilities; and

(2) the child is not eligible for commitment to an institution for children with developmental disabilities or mental disorders.

C. In making the findings set forth in Subsection B of this section, the [judge] court shall consider the following factors:

(1) the seriousness of the alleged offense;

(2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;

(3) whether a firearm was used to commit the alleged offense;

(4) whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;

(5) the maturity of the child as determined by consideration of the child's home, environmental situation, social and emotional health, pattern of living, brain development, trauma history and disability;

(6) the record and previous history of the child;

(7) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services and facilities currently available; and

(8) any other relevant factor, provided that factor is stated on the record.

D. If a child has previously been sentenced as an adult pursuant to the provisions of this section, there shall be a rebuttable presumption that the child is not amenable to treatment or rehabilitation as a child in available facilities.

E. If the court [invokes] imposes an adult sentence, the court may sentence the child to less than, but shall not exceed, the mandatory adult sentence. A youthful offender given an adult sentence [shall be treated as an adult offender and shall be transferred to the legal custody of an agency responsible for incarceration of persons sentenced to adult sentences. This transfer terminates the jurisdiction of the court over the child with respect to the delinquent acts alleged in the petition. A child given an adult sentence] shall not be sentenced to life imprisonment without the possibility of release or parole.

F. A youthful offender who is given an adult sentence of imprisonment shall be imprisoned at a facility for the care and rehabilitation of adjudicated delinquent children until the youthful offender reaches twenty-one years of age, at which time the youthful offender shall be transferred to a corrections facility operated by the corrections department for the remainder of the sentence; provided that a youthful offender who is eighteen years of age or older may be transferred to a corrections facility before the age of twenty- one if the youthful offender commits a violent offense while imprisoned at the facility for the care and rehabilitation of adjudicated delinquent children and the department has conducted a review of the commission of the violent offense, held a hearing with sufficient procedural safeguards and determined that the:

(1) youthful offender poses a substantial and continuing danger to the children at the facility for the care and rehabilitation of adjudicated delinquent children; and

(2) department has no alternative safe placements for or safety interventions to provide the youthful offender.

G. The transfer of a youthful offender to a corrections facility terminates the court's jurisdiction over the youthful offender's case.

[F.] H. If a juvenile disposition is appropriate, the court shall follow the provisions set forth in Section 32A-2-19 NMSA 1978. A youthful offender may be subject to extended commitment in the care of the department until the age of twenty-one, pursuant to the provisions of Section 32A-2-23 NMSA 1978.

[G.] I. A child fourteen years of age or older, charged with first degree murder, but not convicted of first degree murder and found to have committed a youthful offender offense as set forth in Subsection J of Section 32A-2-3 NMSA 1978, is subject to the dispositions set forth in this section.

[H.] J. A child fourteen years of age or older charged with first degree murder, but found to have committed a delinquent act that is neither first degree murder nor a youthful offender offense as set forth in Subsection J of Section 32A-2-3 NMSA 1978, shall be adjudicated as a delinquent subject to the dispositions set forth in Section 32A-2-19 NMSA 1978.

K. The department and the corrections department shall promulgate rules for the transfer of a youthful offender to a corrections facility in accordance with Subsection F of this section."

SECTION 8. Section 32A-2-23 NMSA 1978 (being Laws 1993, Chapter 77, Section 52, as amended) is amended to read:

"32A-2-23. LIMITATIONS ON DISPOSITIONAL JUDGMENTS-- MODIFICATION--TERMINATION OR EXTENSION OF COURT ORDERS.--

A. A judgment transferring legal custody of an adjudicated delinquent child to an agency responsible for the care and rehabilitation of delinquent children divests the court of jurisdiction at the time of transfer of custody, unless the transfer of legal custody is for a commitment not exceeding fifteen days pursuant to the provisions of

Section 32A-2-19 NMSA 1978, in which case the court retains jurisdiction.

B. A judgment of probation or protective supervision shall remain in force for an indeterminate period not to exceed the term of commitment from the date entered.

C. A child shall be released by an agency and probation or supervision shall be terminated by juvenile probation and parole services or the agency providing supervision when it appears that the purpose of the order has been achieved before the expiration of the period of the judgment. A release or termination and the reasons therefor shall be reported promptly to the court in writing by the releasing authority.

D. Prior to the expiration of a short-term commitment of one year, as provided for in Section 32A-2-19 NMSA 1978, the court may extend the judgment for up to one six-month period if the court finds that the extension is necessary to safeguard the welfare of the child or the public safety. If a short-term commitment is extended, the mandatory [ninety-day] supervised release, as required by Section 32A-2-19 NMSA 1978, shall be included in the extension. Notice and hearing are required for any extension of a juvenile's commitment.

E. Prior to the expiration of a long-term commitment, as provided for in Section 32A-2-19 NMSA 1978, the court may extend the judgment for additional periods of one year until the child reaches the age of twenty-one if the court finds that the extension is necessary to safeguard the welfare of the child or the public safety. If a long-term commitment is extended, the mandatory [ninety-day] supervised release, as required by Section 32A-2-19 NMSA 1978, shall be included in the extension. Notice and hearing are required for any extension of a juvenile's commitment.
F. Prior to the expiration of a judgment of probation, the court may extend the judgment for an additional period of one year until the child reaches the age of twenty-one if the court finds that the extension is necessary to protect the community or to safeguard the welfare of the child.

G. The court may dismiss a motion if it finds after preliminary investigation that the motion is without substance. If the court is of the opinion that the matter should be reviewed, it may, upon notice to all necessary parties, proceed to a hearing in the manner provided for hearings on petitions alleging delinquency. The court may terminate a judgment if it finds that the child is no longer in need of care, supervision or rehabilitation or it may enter a judgment extending or modifying the original judgment if it finds that action necessary to safeguard the child or the public interest.

H. A child may make a motion to modify a children's court or adult disposition within thirty days of the judge's decision. If the court is of the opinion that the matter should be reviewed, it may, upon notice to all necessary parties, proceed to a hearing in the manner provided for hearings on petitions alleging delinquency.

I. The department may seek a bench warrant from the court when the child absconds from supervised release."

SECTION 9. Section 32A-2-25 NMSA 1978 (being Laws 1993, Chapter 77, Section 54, as amended) is amended to read:

"32A-2-25. [PAROLE] SUPERVISED RELEASE REVOCATION--PROCEDURES--TOLLING.--

A. A child on [parole from an agency that has legal custody] supervised release who violates a [term of parole] condition of the supervised release may be proceeded against in a [parole] supervised release revocation proceeding conducted by the department or the supervising agency or by a hearing officer contracted by the department who is neutral to the child and the agency in accordance with procedures established by the department in cooperation with the juvenile [parole] public safety advisory board. A juvenile probation [and parole] officer may detain a child on [parole status] supervised release who is alleged to have violated a term or condition of [parole] the supervised release until the completion and review of a preliminary [parole] supervised release revocation hearing. A child may waive the right to a preliminary [parole] supervised release revocation hearing after consultation with the child's attorney, parent, guardian or custodian.

B. If a retake warrant is issued by the department upon the completion of the preliminary [parole] supervised release revocation hearing, the juvenile institution to which the warrant is issued shall promptly transport the child to that institution at the expense of the department. If a child absconds from [parole supervision] supervised release and is apprehended in another state after the issuance of a retake warrant by the department, the juvenile justice division of the department shall cause the return of the child to this state at the expense of the department.

C. The issuance of a warrant pursuant to Subsection B of this section shall toll the child's supervised release term. After a hearing upon return of the warrant or a hearing to quash the warrant, if the court finds that the child knowingly and willfully absconded from supervised release, the period between the date of the violation and the date the child is apprehended or the date the warrant is quashed shall not be counted as time served on supervised release and the tolled period shall be added to the supervised release term."

SECTION 10. Section 33-9A-2 NMSA 1978 (being Laws 1988, Chapter 101, Section 40, as amended) is amended to read:

"33-9A-2. DEFINITIONS.--As used in the Juvenile Community Corrections Act:

[A. "delinquent" means a child adjudicated delinquent pursuant to the Children's Code;

B.] A. "department" means the children, youth and families department;

[C.] B. "fund" means the juvenile community corrections grant fund;

C. "justice-involved youth" means:

(1) persons adjudicated pursuant to the Delinquency Act;

(2) children subject to a delinquency complaint or delinquency petition for a delinquent act that would be a felony if committed by an adult, who have not yet been adjudicated or who will not be adjudicated pursuant to the Delinquency Act; or

(3) persons involved in the juvenile justice system or criminal justice system who are at least eighteen years old but less than twenty-five years old;

D. "secretary" means the secretary of children, youth and families; and

E. "volunteer services" means services provided by individuals or organizations without compensation."

SECTION 11. Section 33-9A-3 NMSA 1978 (being Laws 1988, Chapter 101, Section 41, as amended) is amended to read:

"33-9A-3. JUVENILE COMMUNITY CORRECTIONS GRANT FUND CREATED--PURPOSE--ADMINISTRATION--REPORT.--

A. [There is created in the state treasury] The "juvenile community corrections grant fund" [to be administered by the department. All balances in the fund are appropriated to the department to carry out the purposes of the fund, and] is created in the state treasury. The fund consists of distributions, appropriations, gifts, grants, donations and income from investment of the fund. Money in the fund is appropriated to the department to carry out the provisions of the Juvenile Community Corrections Act. No money shall be transferred to another fund or be encumbered or disbursed in any manner except as provided in the Juvenile Community Corrections Act. [Disbursements] Expenditures from the fund shall be [made only upon warrant drawn] by warrant of the secretary of finance and administration pursuant to vouchers signed by the secretary of children, youth and families or the secretary's authorized representative.

B. Money in the fund shall be used by the department to make grants to counties, municipalities or private organizations, individually or jointly, to provide community corrections programs [and services for the diversion of adjudicated delinquents to community-based settings. No grant shall be made to a private organization that is not a nonprofit organization] for justice-involved youth. A grant shall not be made to a private, for-profit or commercial organization without the approval of the secretary. The department may also use money in the fund to [contract directly for or operate juvenile community corrections programs] operate or contract for the operation of a community corrections program for justice-involved youth.

C. No more than [ten] twelve percent of the money in the fund shall be used by the department for administration and program monitoring by the department. No more than [ten] twelve percent of any grant from the fund shall be used for administrative costs incurred by the grantee.

D. [After notice and public hearing as required by law, the secretary shall adopt regulations that provide standards for] The secretary shall promulgate rules for the qualifications [for grants] of grantees, priorities for awarding of grants and other standards [regarding juvenile] for community corrections programs [deemed necessary] for justice-involved youth; provided that at minimum, eligible programs or services shall be evidence- or research-based. The department shall review and approve or disapprove all grant applications submitted pursuant to the Juvenile Community Corrections Act [for a grant of funds from the fund].

E. On or before December 15 of each year, the department shall submit an annual report to the governor and legislature [not later than December 15 providing information on grant awards] that provides information on grants awarded, program effectiveness, [and] the department's monitoring efforts and [making] the department's recommendations, [as necessary to carry out the purpose of the fund] if applicable.

F. The department may accept donations, payments, contributions, gifts or grants from whatever source for the benefit of the fund."

SECTION 12. Section 33-9A-4 NMSA 1978 (being Laws 1988, Chapter 101, Section 42, as amended) is amended to read:

"33-9A-4. APPLICATIONS--CRITERIA.--

A. Counties, municipalities or private organizations [individually or jointly] may apply for grants from the fund [including grants for counties or municipalities to purchase contractual services from private organizations; provided] individually or jointly. At minimum, an applicant shall certify that:

(1) the [application is for funding a program with priority use being for delinquents selected pursuant to the provisions of Section 33-9A-5 NMSA 1978] applicant will use a grant award for a community corrections program that prioritizes services to justice-involved youth;

(2) the applicant [certifies that it is willing and able to] or the applicant's agents or contractors will operate the program according to standards [provided] adopted by the department [which may include the negotiation of a contract between the delinquent and program staff with provisions such as deductions from employment income for applicable victim restitution, family support, room and board, savings and weekly allowance. In addition to monetary restitution, to the extent practical, or if monetary restitution is not applicable, the contract may include provision for community service restitution for a specific number of hours];

(3) the [applicant demonstrates the support of key components of the criminal justice system] applicant's community corrections program is evidence- or research-based and incorporates best practices in risk reduction for justice-involved youth;

(4) [the applicant, if a private organization, demonstrates the support of the county and municipality where the program will provide services] if the applicant is a private organization, the applicant has the support of the county or municipality where the program is operated; and

(5) the applicant [certifies that it] will utilize volunteer services as an integral portion of the program to the maximum extent feasible [and].

[(6)] B. No class A county alone or in conjunction with any municipality within a class A county shall receive more than forty-nine percent of [any] money appropriated to the fund.

[B. Notwithstanding the provisions of Subsection A of this section. The department may utilize the fund to place individuals eligible, or within twelve months of eligibility, for parole in community-based settings. The department may, in its discretion, require participation by a delinquent in a program as a condition of supervised release.]

C. The department may expend money from the fund to place persons who are eligible for supervised release or parole or who are within twelve months of such eligibility. The department may require participation in a community corrections program as a condition of supervised release for persons adjudicated pursuant to the Delinquency Act. If applicable, the department may also require a community corrections program to assist those persons in making income deductions for victim restitution, family support, room and board, savings and weekly allowances or in completing community service restitution.

[C.] D. The department may [utilize not more than] expend up to twenty-five percent of the fund to contract directly for community corrections programs or to establish community corrections programs operated by the department; provided [however] that the department may [utilize] expend up to an additional ten percent of the fund to operate juvenile community corrections programs if, after a reasonable effort to solicit proposals, there are no satisfactory proposals from a community where [it is determined that] a program is necessary or if it becomes necessary to cancel a program as provided in the contract.

[D.] E. The department shall [establish additional guidelines for allocation of funds under] adopt guidelines for allocating funds pursuant to the Juvenile Community Corrections Act. [An]

F. A grant award applicant shall retain the authority to accept or reject the placement of any [delinquent] person in a program."

SECTION 13. Section 33-9A-5 NMSA 1978 (being Laws 1988, Chapter 101, Section 43, as amended) is amended to read:

"33-9A-5. SELECTION PANELS.--

A. The department shall establish a state panel [whose duties shall be to immediately screen and identify delinquents sentenced to a juvenile correctional facility of the department and transferred to the legal custody of the department, except individuals who are sentenced or transferred from a judicial district that has established a local panel to exercise these duties pursuant to the provisions of this section and who meet the following criteria] to determine eligibility for community corrections programs created or funded pursuant to the Juvenile Community Corrections Act; provided that if a local panel is created in accordance with Subsection D of this section, the local panel shall determine eligibility for persons adjudicated in or transferred to the local panel's community. The state panel shall identify a person adjudicated pursuant to the Delinquency Act immediately upon the person's transfer to the legal custody of the department for commitment to a facility for the care and rehabilitation of adjudicated delinquent children. The state panel shall screen each identified person for eligibility using the following criteria:

(1) [the offense involved] the person's adjudicated offense is one for which community service or reasonable restitution may be made using a payment schedule compatible with the total amount of restitution to be paid and the time the [offender is to] person would participate in a program; and

(2) the [child] person is willing to enter into a contract that establishes objectives [that shall be achieved] the person shall achieve before release from the program.

B. The department may establish criteria in addition to those established in Subsection A of this section [for the screening of delinquents who would benefit from participation in a program and who would not pose a threat to the community].

C. If the state panel determines that a [child] person is suitable for placement in a program, [a recommendation to that effect and for modification of disposition shall be presented as soon as possible to the sentencing judge or the department, which may, notwithstanding any provision of law, accept, modify or reject the recommendation] the panel shall refer the person for participation in a program and, if applicable, request a modification to the person's disposition in accordance with the Delinquency Act. The [determination] referral shall be presented to the county, municipality or private nonprofit organization, as applicable, for approval or rejection.

D. A county, municipality or private nonprofit organization, individually or jointly, may establish a local panel to exercise the duties and responsibilities of the state panel [pursuant to the provisions of Subsection A of this section and, using the same criteria as the state panel, the local panel may screen and identify delinquents]. The local panel shall use the criteria provided in Subsection A of this section to screen for eligibility to participate in a community corrections program. The composition of a local panel shall include, to the maximum extent possible, representatives of the judiciary, the administrative office of the district attorneys, the public defender department, the children, youth and families department, the county sheriff or the municipal police department, [individuals] persons representing local programs and private citizens."

SECTION 14. Section 33-9A-6 NMSA 1978 (being Laws 1988, Chapter 101, Section 44) is amended to read:

"33-9A-6. SENTENCING.--

A. In every case [where the commitment to the authority of a child adjudicated delinquent is contemplated by a judge] pursuant to the Delinquency Act where an adjudicated person is subject to a potential disposition that includes transfer to the custody of the department for commitment to a facility for the care and rehabilitation of adjudicated delinquent children, a predisposition report shall be prepared containing the recommendation of the juvenile probation officer regarding a community corrections placement, or a diagnostic evaluation shall be completed by the [authority] department containing the recommendation of the [authority] department regarding that placement, and the judge shall consider that report or evaluation prior to [making that commitment] ordering a disposition. A juvenile probation officer shall consult with the [authority] department prior to making a recommendation pursuant to this subsection.

[B. At a sentencing hearing, if a judge of a court of competent jurisdiction determines placement in community corrections is appropriate, he shall defer or suspend the sentence and, as a condition of probation, require an individual to serve a period of time in a community corrections program.]

B. At a disposition hearing held pursuant to the Delinquency Act, if the court determines that the adjudicated person's participation in a community corrections program is appropriate, the court shall order such participation as part of the disposition."

- 44 -