N.M. Sup. Ct. Order No. S-1-AO-2024-00038 (attachment1) 8

that must travel more than one hundred (100) miles round trip shall be

responsible for canceling and notifying witness(es) if travel is not needed.

Failure to exercise diligence in canceling and notifying the witness(es)

may result in the state agency being responsible for the cost of the

traveling witness(es);

III. DEFINITION OF WITNESS PAYMENTS

Witness travel payments shall be authorized for all allowable travel expenses charged by a

witness who has been subpoenaed by the court, prosecution, or defense for the purpose of giving

in-person testimony regarding what they had seen, heard or observed. The jury and witness fund

covers allowable expenses, listed in the Mileage and Per Diem Act (Attachment A) during

testimony for all state witnesses and for defense witnesses when indigency has been determined.

For determination of indigency, see the public defender indigency determination standards and

form available at local public defenders department offices or https://www.lopdnm.us/links-forms/

The types of proceedings for which witness travel payments are allowable are for in-person:

1. Grand Jury

2. Criminal Cases,

3. Civil cases provided free process as follows:

a) Children's Code, and

b) Mental Health and Developmental Disabilities Code.

IV. PAYMENT LIMITATIONS (EXPERT WITNESSES)

If the trial court chooses to call an expert witness, payment of the expert witness fees

shall be limited as follows:

A. In district court, the judge may order payment of reasonable expert witness fees in

any pending civil case, in addition to per diem and mileage for an expert witness

who testified in person or by deposition NMSA 1978, §38-6-4. The presiding

judge or designee shall consult with the AOC in advance when a reasonable expert

witness fee is expected to exceed five hundred dollars ($500.00).

B. Payment Responsibilities regarding Expert Witnesses: Criminal Proceedings

The Agency that calls the expert witness shall be responsible for payment of the expert

fees associated with the expert’s opinion and testimony except for the following:

1. Preliminary Hearings and trials in Magistrate Court: The Agency must

request approval of the expert from the presiding judge prior to retaining

the expert or the Agency shall pay the fees of that witness. Since the

purpose of a preliminary hearing is to determine probable cause, and not

determine guilt or innocence, the need for expert witnesses for preliminary

hearings and trials should be minimal and infrequently requested.

2. Criminal Grand Jury Proceedings: Whoever calls an expert witness shall

pay the fees of that witness. The AOC shall pay for an expert who is called

specifically by the grand jury and who conducts an examination testimony

at the direct request of the jury. This request shall be made through the

presiding district judge. The presiding district judge must approve the

request as being necessary to the determination of probable cause before

the AOC will pay for that expert. Since the purpose of a grand jury is to

determine probable cause, and not to determine guilt or innocence, the

need for an expert witness in a grand jury proceeding should be minimal.

3. Delinquency Proceeding: Whoever calls the expert witness shall pay the

fees of that witness.

C. Payment Responsibilities regarding Expert Witnesses: Civil Proceedings

1. The agency that calls the expert witness shall pay the fees of that witness

in the following types of proceedings:

a) Mental Health and Developmental Disabilities Code;

b) Alcoholism commitment proceedings;

c) Child abuse and adult abuse proceedings;

d) Child support cases;

e) Termination of parental rights and custody proceedings;

f) CHINS proceedings; and

g) Habeas corpus proceedings.

V. PAYMENT RESPONSIBILITY

A. Mileage & Travel Expenses

1. Ordinarily, mileage is paid for one round trip portal-to-portal. If a witness

chooses to travel to court each day, the judge or his designee shall approve

the lesser of the cost of mileage or the overnight per diem rate.

2. Mileage will be paid per Supreme Court order mileage rate for privately

owned vehicles and at the DFA rate for privately owned airplanes. Driving

mileage is calculated using Google maps, NMDOT or unless beginning

and ending odometer readings are provided; air mileage is calculated using

an official air map.

3. The cost of a travel by common carrier, e.g., commercial bus, train, or

plane, may be reimbursed to the traveler. Reimbursement for any travel

shall not exceed the cost of coach class commercial airfare.

4. Mileage shall be paid to only one person per vehicle.

5. Car rental expenses for a witness shall only be reimbursed upon prior

written approval of the presiding judge or designee. See #2 of this section

for mileage payments.

Documentation Required

A Certification of Witness form filled out and signed by the witness and the public defender,

district attorney or attorney must accompany the reimbursement request with a copy of the

subpoena attached. If reimbursing a traveler for airfare, bus ticket, etc., the original receipt must

be attached. AOC will NOT accept travel agency invoices or credit card slips without the

original receipt attached. Reimbursement for hotels and travel agencies must include a copy of

the relevant subpoena, the Certificate of Witness form, and original receipts.

B. Per Diem Expenses

Witnesses shall be paid per diem expenses at the current DFA schedule for public employees:

1. For out-of-state witnesses, travel time is usually calculated in flying time

rather than driving time. Exceptions may be made when the court is not

located near an airport. For purposes of these guidelines, "out-of-state"

means over 150 miles from the exterior boundaries of New Mexico.

2. When a witness is required to appear more than one day and they choose to

stay somewhere other than the town in which the court is located, the

presiding judge or their designee shall approve the lesser of the cost of

mileage charges or the overnight per diem rate. If a witness must return to

their place of residence and the mileage charges exceed the overnight per

diem rate, the attorney calling the witness must obtain prior approval from

AOC.

C. Parking

Parking expenses are allowable if incurred while a witness is attending court and if parking is not

provided by the court. Appropriate receipts must be provided to AOC for reimbursement.

D. Other Expenses

1. Per diem and mileage expenses shall be reimbursed pursuant to the DFA

guidelines to public employees serving as security escort to the witness. A

security escort is defined as any full-time salaried law enforcement officer,

bailiff, correctional officer or security agent under contract to the state. This

paragraph also applies to out-of-state security escorts.

2. When a prisoner is housed in a municipal or county jail in order to serve as a

witness, the jail will be paid for housing the prisoner as long as the cost does

not exceed the normal and customary cost of housing a prisoner in that

facility.

3. If the person or agency who calls the prisoner witness causes that witness to

spend more than three nights in the host jail facility, that person or agency

shall pay for the additional cost, unless prior written approval, including the

reason for the additional time requested, has been obtained from the judge to

exceed the allowable time. The approval must be submitted with the

voucher.

E. Payment Responsibility When Witness Not Used

The person or agency that calls the witness shall be responsible for notifying the witness of trial

cancellations, continuances, resetting or settlements. If that person or agency fails to notify the

witness, that person or agency shall be responsible for the per diem and mileage expenses of the

witness; under those circumstances, AOC will not pay for the witness. In determining payment

responsibility under this subsection, the one who called the witness must show that they were

unable to contact the witness despite good faith efforts to do so, and a sworn statement to that

effect must accompany the request for payment.

F. Processing of Vouchers

1. The Certification of Witness form is filled out by the expert witness and

attached to the expert’s bill for services. If the form is incomplete, it will be

returned to the appropriate court for completion.

2. The presiding judge or their designee shall reject a voucher requesting

payment from the fund for expenses that are not allowable expenses

pursuant to these guidelines. The judge or their designee shall certify to the

accuracy of the form by signing the Certification Witness form or voucher.

AOC may request reconsideration of the presiding judge or their designee

upon approval of a voucher for expenses that are not allowable expenses

pursuant to these guidelines within ten (10) days of the vouchers

submission.

3. The agency that requested the witness shall prepare the necessary

information and provide it to the court for preparation of the voucher; if a

private attorney requested the witness, they must provide the necessary

information to the court for preparation of the voucher. Court personnel

shall review for completeness and accuracy and forward the form, the Order

of Appointment, if applicable, all necessary receipts and prepared state

voucher for each witness to AOC for payment. The court shall retain a copy

for its files.

4. AOC will process the payment request and mail the payment directly to the

witness for the magistrate courts, unless otherwise specified. Witness

payments for the district courts will be returned to that district court for

distribution to the witness.

Revised and Effective 07/01/2024

Attachment A

DFA Travel Rule Updates

During the 2021 Legislative Session, travel laws were changed. DFA went thru the New Mexico

Administrative Code (NMAC) Rule changing process to update the Rule to be in line with the laws. It was

a 3 year process. The last modification to the travel rules were done in 2003. This will impact Title 2,

Chapter 42, Part 2 Regulations Covering the Per Diem and Mileage Act

Here are the updates:

1. 2.42.2.7 Definitions

a. They added a definition of “attend”

b. The 35 mile radius has been increased to 50 miles in the definitions for “home” &

“travel”

2. 2.42.2.8 Per Diem Rates Proration

a. The breakdown of specific partial day per diem rates is removed. The new rates will be

set by DFA annually.

b. Special area defined as Santa Fe County, instead of Santa Fe.

3. 2.42.2.9 Reimbursement of Actual Expenses in lieu of Per Diem Rates

a. The dollar amounts that are currently listed is removed. DFA will set the amounts

annually.

4. 2.42.2.11 Mileage‐Private Conveyance

a. Mileage reimbursement rate was 80% of IRS rate from previous year as of January 1.

Now it will be 100%. Essentially it’ll increase from $0.52 to $0.66, a 20% increase.

b. Judicial agencies: There’s a Supreme Court order in place to use $0.52/mile. This would

need an amendment if any other rate is to be used.

c. Rand McNally was removed & an electronic mileage calculator as approved by DFA was

added. Google Maps can now be used to calculate mileage. Best route would need to

be selected. DOT map & odometer readings also still acceptable.

5. 2.42.2.12 Reimbursement for Other Expenses

a. Currently says employees may be reimbursed without receipts for other expenses (i.e.

taxi fares, parking fees, tips) in the amount of $6/day or $30/trip. Now, an itemized

receipt is required.

b. The Lost Receipt Affidavit is not going away but it is to be used in hardship cases or if the

receipt is damaged somehow. It should be a very rare occurrence. Emphasis is added

on obtaining itemized receipts.

6. Effective Date

a. Today Jan. 16, 2024 is the effective date for these dates

b. DFA is setting March 1, 2024 as the required implementation date to allow agencies

adequate time to accommodate these changes.

c. Early implementation is allowed however

Impacts to Judiciary:

1. Jury & Witness

a. Increased costs for mileage

b. Updates to Jury software needed

2. Courts

a. Slight increased costs

b. Contractors ‐ if contracts stated a specific mileage rate, amendments might be needed

3. Travelers

a. Increased responsibility to obtain & submit itemized receipts

b. Increased emphasis on using state vehicles instead of personal vehicles

c. Emphasis on consistency.