A. An action that would have any of the effects specified in Subsections D through N of Section 61-1-3 NMSA 1978 or an action related to unlicensed activity shall not be initiated by a board later than two years after the discovery by the board of the conduct that would be the basis for the action, except as provided in Subsection C of this section.
B. The time limitation contained in Subsection A of this section shall be tolled by any civil or criminal litigation in which the licensee or applicant is a party arising from substantially the same facts, conduct or transactions that would be the basis for the board's action.
C. The New Mexico state board of psychologist examiners shall not initiate an action that would result in any of the actions specified in Subsections D through N of Section 61-1-3 NMSA 1978 later than five years after the conduct of the psychologist or psychologist associate that is the basis for the action. However, if the conduct that is the basis for the action involves a minor or a person adjudicated incompetent, the action shall be initiated, in the case of a minor, no later than one year after the minor's eighteenth birthday or five years after the conduct, whichever is last and, in the case of a person adjudicated incompetent, one year after the adjudication of incompetence is terminated or five years after the conduct, whichever is last.
D. The New Mexico public accountancy board shall not initiate an action under the 1999 Public Accountancy Act [Chapter 61, Article 28B NMSA 1978] that would result in any of the actions specified in Subsections D through N of Section 61-1-3 NMSA 1978 later than two years following the discovery by the board of a violation of that act.
History: 1978 Comp., § 61-1-3.1, enacted by Laws 1981, ch. 349, § 3; 1989, ch. 41, § 1; 1992, ch. 10, § 27; 1993, ch. 218, § 40; 1993, ch. 295, § 4; 2003, ch. 334, § 1.
ANNOTATIONSThe 2003 amendment, effective July 1, 2003, in Subsection A, inserted "or an action related to unlicensed activity", "by the board" and substituted "Subsection C" for "Subsections C and D"; in Subsection D, inserted "1999" preceding "Public Accountancy Act".
The 1993 amendment, effective June 18, 1993, substituted "Subsections D through N" for "Subsection D, E or F" in Subsection A and the first sentence of Subsection C; inserted "the discovery of" in Subsection A; substituted "result in any of the actions" for "have any of the effects" in the first sentence of Subsection C; and rewrote Subsection D. This section was also amended by Laws 1993, ch. 218, § 40. The section is set out as amended by Laws 1993, ch. 295, § 4. See 12-1-8 NMSA 1978.
The 1992 amendment, effective May 20, 1992, substituted "Subsections C and D" for "Subsection C" in Subsection A, added Subsection D and made minor stylistic changes throughout the section.
The 1989 amendment, effective June 16, 1989, in Subsection A, substituted "Subsection D" for "Subsections D" and added "except as provided in Subsection C of this section"; in Subsection B deleted ", transaction" following "conduct"; and added Subsection C.
When limitation period began to run under the 1993 version of the statute. — The 1993 version of the two-year limitations began to run when the licensing board discovered the conduct giving rise to a disciplinary action against a licensee, not when someone else, such as a complaining party, discovered the conduct. N.M. Real Estate Comm'n v. Barger, 2012-NMCA-081, 284 P.3d 1112.
Where a complaint was filed with the New Mexico real estate commission in October 2008 against the licensed real estate broker which alleged that the broker was guilty of ethical violations in connection with a real estate contract executed by a seller of real estate and the broker as buyer; the commission investigated the matter and, in May 2010, filed a notice of contemplated action against the broker threatening to revoke the broker's license; the notice of contemplated action was filed more than two years after the complaining party discovered the broker's alleged unethical conduct, but less than two years after the commission discovered the conduct; the 1993 version of the statute did not specify whose discovery of unethical conduct triggered the limitations period; and the 2003 amendment specified that discovery of the unethical conduct by the commission triggered the limitations period, the limitations period began to run under the 1993 version of the statute when the commission discovered the broker's conduct, not when the complaining party discovered the conduct. N.M. Real Estate Comm'n v. Barger, 2012-NMCA-081, 284 P.3d 1112.
When limitation period begins to run. — The limitation period of this section begins to run from the date of the licensee's culpable conduct. Varoz v. N.M. Bd. of Podiatry, 1986-NMSC-051, 104 N.M. 454, 722 P.2d 1176.
Criminal prosecution tolls statute. — The criminal prosecution of culpable conduct serves only to toll the statute if litigation is commenced during the two-year period following the criminal act. Varoz v. N.M. Bd. of Podiatry, 1986-NMSC-051, 104 N.M. 454, 722 P.2d 1176.
If tolling applies, the limitation period is tolled from the time of indictment or information until the judgment of conviction has been entered, but no longer. Varoz v. N.M. Bd. of Podiatry, 1986-NMSC-051, 104 N.M. 454, 722 P.2d 1176.
Conviction is not "conduct". — Although the fact of conviction may provide a separate and independent basis for revoking a professional license, a conviction is not "conduct" within the meaning of this section and, therefore, the two-year limitation period begins to run from the time of the conduct, transaction or occurrence that underlies the conviction rather than from the date of conviction. Varoz v. N.M. Bd. of Podiatry, 1986-NMSC-051, 104 N.M. 454, 722 P.2d 1176.
Evidence outside of limitations period proper. — Where psychologist failed to object at the administrative hearing to evidence concerning events that occurred outside of the statute of limitations; as such, the evidence of the therapeutic relationship was properly presented in order to provide context and background. N.M. State Bd. of Psychologist Exam'rs v. Land, 2003-NMCA-034, 133 N.M. 362, 62 P.3d 1244, cert. denied, 133 N.M. 413, 63 P.3d 516.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Applicability of statute of limitations or doctrine of laches to proceeding to revoke or suspend license to practice medicine, 51 A.L.R.4th 1147.