A. The chief is responsible to the commission for the operation of the department. It is the chief's duty to manage all operations of the department and to:
(1) administer and carry out the provisions of the Public Defender Act with which the chief is charged;
(2) exercise authority over and provide general supervision of employees of the department; and
(3) represent and advocate for the department and its clients.
B. To perform the chief's duties, the chief has every power implied as necessary for that purpose, those powers expressly enumerated in the Public Defender Act or other laws and full power and authority to:
(1) exercise general supervisory authority over all employees of the department;
(2) delegate authority to subordinates as the chief deems necessary and appropriate;
(3) within the limitations of applicable appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge the chief's duties;
(4) organize the department into those units the chief deems necessary and appropriate to carry out the chief's duties;
(5) conduct research and studies that will improve the operation of the department and the administration of the Public Defender Act;
(6) provide courses of instruction and practical training for employees of the department that will improve the operation of the department and the administration of the Public Defender Act;
(7) purchase or lease personal property and lease real property for the use of the department;
(8) maintain records and statistical data that reflect the operation and administration of the department;
(9) submit an annual report and budget covering the operation of the department together with appropriate recommendations to the commission and, upon approval by the commission, to the legislature and the governor;
(10) serve as defense counsel under the Public Defender Act as necessary and appropriate;
(11) formulate a fee schedule for attorneys who are not employees of the department who serve as counsel for indigent persons under the Public Defender Act;
(12) adopt a standard to determine indigency;
(13) provide for the collection of reimbursement from each person who has received legal representation or another benefit under the Public Defender Act after a determination is made that the person was not indigent according to the standard for indigency adopted by the department. Any amounts recovered shall be paid to the state treasurer for credit to the general fund;
(14) require each person who desires legal representation or another benefit under the Public Defender Act to enter into a contract with the department agreeing to reimburse the department if a determination is made that the person was not indigent according to the standard for indigency adopted by the department; and
(15) certify contracts and expenditures for litigation expenses, including contracts and expenditures for professional and nonprofessional experts, investigators and witness fees, but not including attorney contracts, pursuant to the provisions of the Procurement Code [13-1-28 to 13-1-199 NMSA 1978].
History: 1953 Comp., § 41-22A-7, enacted by Laws 1973, ch. 156, § 7; 1977, ch. 257, § 60; 1985, ch. 32, § 3; 1987, ch. 20, § 1; 2001, ch. 34, § 1; 2013, ch. 195, § 11; 2014, ch. 78, § 3.
ANNOTATIONSCross references. — For defense of indigents, see 31-16-1 to 31-16-10 NMSA 1978.
The 2014 amendment, effective May 21, 2014, authorized the public defender to supervise department employees under personnel policies adopted by the public defender commission; and in Subsection B, Paragraph (1), after "department", deleted "subject to the Personnel Act".
The 2013 amendment, June 14, 2013, required the chief public defender to represent and advocate for the public defender department and its clients; in Subsection A, in the first sentence of the introductory paragraph, after "responsible to the", deleted "governor" and added "commission"; added Paragraph (3) of Subsection A; in Paragraph (9) of Subsection B, after "annual report", added "and budget", after "recommendations to the", deleted "governor, secretary of corrections" and added "commission", after "commission, and", added "upon approval by the commission, to the", and after "to the legislature", added "and the governor".
The 2001 amendment, effective July 1, 2001, inserted Paragraph B(15), which gives the chief the power to certify certain contracts and expenditures for litigation expenses.
The 1987 amendment, effective June 19, 1987, in Subsection B(9), substituted "corrections and" for "the criminal justice department and the" and added Subsections B(12) through (14).
The 1985 amendment deleted former Subsection A(3), relating to the chief's duty to advise the public defender board on matters relating to the administration of the department.
Constitutionality of flat-fee arrangements for indigent defense contract counsel. — Where the New Mexico legislature, in its 2015 general appropriation to the law office of the public defender (LOPD), specifically provided that the appropriations to the public defender department shall not be used to pay hourly reimbursement rates to contract attorneys, the district court erred in entering an order requiring the LOPD to pay contract counsel hourly rates and the state to provide additional funding, nullifying the legislature's prohibition of the payment of hourly rates to indigent defense contract counsel as violative of the federal and state constitutions, based on its conclusion that the flat-fee rates paid to contract counsel by the LOPD contravene the constitutional guarantee of effective assistance of counsel; an indigent criminal defendant who is represented by contract counsel who is compensated under a flat-fee arrangement does not necessarily receive ineffective assistance of counsel. Kerr v. Parsons, 2016-NMSC-028.