A. Providing a written determination has been made, a state agency, local public body, school district or state educational institution may sell or otherwise dispose of real or tangible personal property belonging to the state agency, local public body, school district or state educational institution.
B. A state agency, local public body, school district or state educational institution may sell or otherwise dispose of real property:
(1) by negotiated sale or donation to an Indian nation, tribe or pueblo located wholly or partially in New Mexico, or to a governmental unit of an Indian nation, tribe or pueblo in New Mexico, that is authorized to purchase land and control activities on its land by an act of congress or to purchase land on behalf of the Indian nation, tribe or pueblo;
(2) by negotiated sale or donation to other state agencies, local public bodies, school districts or state educational institutions;
(3) through the central purchasing office of the state agency, local public body, school district or state educational institution by means of competitive sealed bid, public auction or negotiated sale to a private person or to an Indian nation, tribe or pueblo in New Mexico; or
(4) if a state agency, through the surplus property bureau of the transportation services division of the general services department.
C. A state agency shall give the surplus property bureau of the transportation services division of the general services department the right of first refusal to dispose of tangible personal property of the state agency. A school district may give the surplus property bureau the right of first refusal to dispose of tangible personal property of the school district.
D. Except as provided in Section 13-6-2.1 NMSA 1978 requiring state board of finance approval for certain transactions, sale or disposition of real or tangible personal property having a current resale value of more than five thousand dollars ($5,000) may be made by a state agency, local public body, school district or state educational institution if the sale or disposition has been approved by the state budget division of the department of finance and administration for state agencies, the local government division of the department of finance and administration for local public bodies, the public education department for school districts and the higher education department for state educational institutions.
E. Prior approval of the appropriate approval authority is not required if the tangible personal property is to be used as a trade-in or exchange pursuant to the provisions of the Procurement Code [13-1-28 to 13-1-199 NMSA 1978].
F. The appropriate approval authority may condition the approval of the sale or other disposition of real or tangible personal property upon the property being offered for sale or donation to a state agency, local public body, school district or state educational institution.
G. The appropriate approval authority may credit a payment received from the sale of such real or tangible personal property to the governmental body making the sale. The state agency, local public body, school district or state educational institution may convey all or any interest in the real or tangible personal property without warranty.
H. This section does not apply to:
(1) computer software of a state agency;
(2) those institutions specifically enumerated in Article 12, Section 11 of the constitution of New Mexico;
(3) the New Mexico state police division of the department of public safety;
(4) the state land office or the department of transportation;
(5) property acquired by a museum through abandonment procedures pursuant to the Abandoned Cultural Properties Act [18-10-1 NMSA 1978];
(6) leases of county hospitals with any person pursuant to the Hospital Funding Act [4-48B-1 NMSA 1978];
(7) property acquired by the economic development department pursuant to the Statewide Economic Development Finance Act [6-25-1 NMSA 1978]; and
(8) the state parks division of the energy, minerals and natural resources department.
History: 1978 Comp., § 13-6-2, enacted by Laws 1979, ch. 195, § 3; 1980, ch. 89, § 17; 1984, ch. 47, § 2; 1987, ch. 15, § 2; 1989, ch. 211, § 7; 1989, ch. 380, § 3; 2001, ch. 291, § 9; 2001, ch. 317, § 2; 2003, ch. 203, § 1; 2003, ch. 349, § 21; 2004, ch. 95, § 1; 2007, ch. 57, § 5.
ANNOTATIONSRepeals and reenactments. — Laws 1979, ch. 195, § 3, repealed former 13-6-2 NMSA 1978, relating to the sale of property by state agencies or local public bodies, and enacted a new section.
Cross references. — For sales subject to approval of legislature, see 13-6-3 NMSA 1978.
For general powers and duties of state board of finance, see 6-1-1 NMSA 1978.
The 2007 amendment, effective July 1, 2007, permitted state agencies to dispose of property through the surplus property bureau.
Temporary provision. — Laws 2007, ch. 57, § 6 transferred money in the surplus property revolving fund to the surplus property fund.
The 2004 amendments, effective March 9, 2004, deleted the last sentence of Subsection A relating to the disposal of real or tangible personal property by negotiated sale or donation, added Subsection B to the compiled version, redesignated former Subsections B through G as Subsections C through H and added Paragraph (8) of Subsection H to exclude the state parks division.
The 2003 amendment, effective June 20, 2003, added Paragraphs G(6) and (7).
The 2001 amendment, effective June 15, 2001, in Subsection A, substituted "Providing a written determination has been made, a" for "Any" and "may" for "is empowered to" at the beginning of the subsection; in Subsections A, C, E, and F, inserted "tangible" preceding "personal property"; inserted a new Subsection B; redesignated as Subsection C language from former Subsection A; redesignated former Subsections B to D as D to F; inserted "or donation" to Subsection E; in Subsection F, substituted "may" for "shall have the power to" preceding "credit"; redesignated former Subsections E and F as Subsection G; deleted "or hardware" from Paragraph G(1); inserted the current Paragraph G(3); and added current Paragraph G(5).
Sections 13-6-2 and 67-2-6 NMSA 1978 must be construed and applied together to give effect to both sections. State ex rel. Madrid v. UU Bar Ranch, 2005-NMCA-079, 137 N.M. 719, 114 P.3d 399, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229.
Highway department must get permission. — Where the highway department did not obtain board of finance approval for the abandonment of a road, the lack of board of finance approval invalidated the attempted abandonment of the road. State ex rel. Madrid v. UU Bar Ranch, 2005-NMCA-079, 137 N.M. 719, 114 P.3d 399, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229.
Transportation commission's authority. — The exclusion of the Transportation commission from Section 13-6-2A NMSA 1978, as it existed in 2000 does not mean that the commission has express authority to sell or otherwise dispose of and thus convey real property and thus roads; the plain meaning of the statutory exclusion in Section 13-6-2F (1989) is that any authority to dispose of roads under Section 13-6-2 NMSA 1978 is not granted to the commission by the section. Piedra, Inc. v. N.M. Transp. Comm'n, 2008-NMCA-089, 144 N.M. 382, 188 P.3d 106, cert. denied, 2008-NMCERT-005, 144 N.M. 331, 187 P.3d 677.
Any building owned by any state agency is, in fact, the property of the state of New Mexico, as no department, agency or other arm of the state can be held to be independent of the state. 1956 Op. Att'y Gen. No. 56-62.
Generally. — This section contemplates some change in ownership of the property, not the mere creation of a lien against it. State institutions may not create security interests in their property by way of mortgage or pledge to secure a loan of money. 1960 Op. Att'y Gen. No. 60-187.
Who may dispose of property. — If a state agency or department wishes the purchasing agent to dispose of its surplus property, he may do so. If the agency wishes to dispose of such property itself, it may do so in accordance with the provisions. 1962 Op. Att'y Gen. No. 62-26.
Oil and gas leaseholds are regarded as real property in New Mexico. 1980 Op. Att'y Gen. No. 80-10.
Sale may be either private or public. 1963 Op. Att'y Gen. No. 63-95.
Nature of disposition affecting need for approval. — In instances where a local school board desires to enter into a lease of real property to any private party or religious group and proposes to give exclusive right of possession and occupancy to school lands or buildings, the state board of finance must give its approval pursuant to statute. Where, however, the use permitted is temporary or brief and limited to hours when the property is not needed for school purposes, the approval of the state board of finance is not necessary, and the local board of education may or may not authorize such usage according to its discretion. 1963 Op. Att'y Gen. No. 63-106.
Agreements should contain express condition regarding approval requirement. — The board of regents of the New Mexico school for the deaf could solicit bids from purchasers for the sale of property over $50.00 (now $5,000) in value and could enter into an agreement of sale with individuals, subject to the express provision that such sale would not be final or binding upon the institution until or unless approved by the state board of finance. 1963 Op. Att'y Gen. No. 63-95.
Veto power over gratis property transfers. — Subsection A (now Subsection C) gives the secretary of finance and administration or the state board of finance veto power over any gratis transfer of property. 1980 Op. Att'y Gen. No. 80-5.
Realty leases of state fair commission. — This section empowers the New Mexico state fair commission to enter into leases of realty contingent upon express approval of the state board of finance. 1964 Op. Att'y Gen. No. 64-92.
Extension of leases. — State law does not require the state fair commission to use a bid or request for proposal when extending leases beyond the term of an existing contract. However, if the current resale value of the property leased exceeds $5,000, the department of finance and administration must, pursuant to this section, approve any extensions. And, if a lease is extended so that it extends beyond the 25-year period specified in 13-6-3 NMSA 1978, legislative approval is required. 1987 Op. Att'y Gen. No. 87-57.
Exclusive rights to private or religious group. — If the public body concerned desires to enter into a lease of real property to any private party or religious group and proposes to give exclusive right of possession and occupancy to lands and buildings, the state board of finance must give its approval pursuant to this section. 1964 Op. Att'y Gen. No. 64-92.
State parks division must get permission. — This section gives the state park commission (now state parks division of the natural resources department), as well as any other commission or agency of the state, the authority to sell, or otherwise dispose of, any property owned by the state, subject to the approval of the state board of finance. 1961 Op. Att'y Gen. No. 61-123.
Insofar as a soil conservation district (now soil and water conservation district) does have power of sale of its assets, this power is subject to regulation by the legislature. 1963 Op. Att'y Gen. No. 63-125.
When permission not necessary. — When the use permitted by lease of a public body is temporary or brief, and limited to hours when the property is not needed for public purposes, the approval of the state board of finance is not necessary, and the public body may or may not authorize such usage according to its discretion. 1964 Op. Att'y Gen. No. 64-92.
Municipalities and counties need not obtain approval before disposing of property not needed for a public purpose. 1978 Op. Att'y Gen. No. 78-21.
When purchase against public policy. — A member of a local board of education may not lawfully bid or purchase school property which is offered for sale by a school district, irrespective of whether such property is or is not in excess of $50.00 (now $5,000) in value, and any such contract of purchase would be void as against public policy. 1964 Op. Att'y Gen. No. 64-13.
When reimbursement necessary. — Because of the requirement of N.M. Const., art. IX, § 14, it is incumbent upon any public agency or commission to obtain reimbursement for any actual expenses occasioned by reason of permitted private use of public facilities. 1964 Op. Att'y Gen. No. 64-92.
Long-term lease with boys school permissible. — A municipality may enter into a long-term lease with the New Mexico boys school for land and buildings for the purpose of setting up a recreation center for the community and the surrounding area, and which will be under the control and supervision of the municipality. 1968 Op. Att'y Gen. No. 68-33.
Most agency leasing forms need not comply with 19-10-3 NMSA 1978. — The form for leasing oil and gas lands belonging to agencies other than the office of the commissioner of public lands need not comply with the terms and conditions of 19-10-3 NMSA 1978, even where such leases are offered through the facilities of the commissioner as an accommodation to another state agency. 1980 Op. Att'y Gen. No. 80-10.
Power to credit where no specific directions. — In the absence of a specific direction the director (secretary) of the department of finance and administration has the power to credit the money received from a sale of the state police headquarters to whatever fund of the state police he deems appropriate. 1969 Op. Att'y Gen. No. 69-56.
Highway department condemnation proceeds. — Even though legislative approval prior to condemnation by the state highway department is not necessary under 42-2-3 NMSA 1978, this section still controls the distribution of proceeds from the sale or condemnation. 1969 Op. Att'y Gen. No. 69-144.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 56 Am. Jur. 2d Municipal Corporations, Counties and Other Political Subdivisions §§ 549 to 553; 63C Am. Jur. 2d Public Lands § 33; 72 Am. Jur. 2d States, Territories, and Dependencies §§ 64 to 67.
Constitutional prohibition of municipal corporation lending its credit or making donation as applicable to sale or leasing of its property, 161 A.L.R. 518.
Constitutionality of classification of purchaser in statutes respecting sale of public property, 169 A.L.R. 1399.
Power of municipal corporation to exchange its real property, 60 A.L.R.2d 220.
Power of municipality to sell, lease, or mortgage public utility plant or interest therein, 61 A.L.R.2d 595.
Power of municipal corporation to lease or sublet property owned or leased by it, 47 A.L.R.3d 19.
62 C.J.S. Municipal Corporations § 185; 81A C.J.S. States §§ 148 to 150.