N.M. Stat. » N.M. Stat. / Chapter 12 / Article 2A
New Mexico Statutes

N.M. Stat. § 12-2A-4 (2026)

Construction of "shall", "must" and "may".

✓ current as of May 2026
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A. "Shall" and "must" express a duty, obligation, requirement or condition precedent.

   B. "May" confers a power, authority, privilege or right.

    C. "May not", "must not" and "shall not" prohibit the exercise of a power, authority,
privilege or right.

History: Laws 1997, ch. 173, § 4.

                                     ANNOTATIONS

Effective dates. — Laws 1997, ch. 173 § 22 made the Uniform Statute and Rule
Construction Act effective July 1, 1997.

"Shall" and "must". — The words "shall" and "must" generally indicate that the
provisions of a statute are mandatory and not discretionary. State v. Lara, 2000-NMCA-
037, 129 N.M. 391, 9 P.3d 74.

Mandatory or directory. — The question of whether a statutory requirement is
mandatory or merely directory is answered by looking to the intent of the statute. Stokes
v. Tatman, 1990-NMSC-113, 111 N.M. 188, 803 P.2d 673.

"May" contrasted with "can". — In the context of the annexation statutes and the
statutes relating to municipal planning, the word "may" in Section 3-7-15A NMSA 1978,
cannot reasonably be interpreted as "can." City of Albuquerque v. State Mun. Boundary
Comm'n, 2002-NMCA-024, 131 N.M. 665, 41 P.3d 933.

"Shall" and "may" not interchangeable, legislative intent determines use. —
Whether words of statutes are mandatory or discretionary is a matter of legislative intent
to be determined by consideration of the purpose sought to be accomplished and the
general rule is that the words "shall" and "may" shall not be used interchangeably. State
ex rel. Robinson v. King, 1974-NMSC-028, 86 N.M. 231, 522 P.2d 83.

Directions not essence of duties not mandatory. — Directions in a statute which are
not the essence of things to be done are not commonly considered mandatory,
particularly where failure to comply does not result in prejudice. State v. Lindwood,
1968-NMCA-063, 79 N.M. 439, 444 P.2d 766.

If public interest involved, public officer's power is mandatory. — Where a public
officer is clothed with power in permissive form to perform an act in which the interests
of the public are concerned, the permissive language of a statute will be construed as
mandatory. State ex rel. Robinson v. King, 1974-NMSC-028, 86 N.M. 231, 522 P.2d 83.

When "shall" mandatory. — A claim for relief "shall contain a short and plain
statement of the claim showing that the pleader is entitled to relief," and that "each
averment of a pleading shall be simple, concise and direct." The word "shall" is
mandatory. Mantz v. Follingstad, 1972-NMCA-164, 84 N.M. 473, 505 P.2d 68.

"Shall" held mandatory. — "Shall" in Section 31-1-3 NMSA 1978, and in former Rule
40, N.M.R. Crim. P. (now Rule 5-607), is mandatory. State v. Davis, 1982-NMCA-057,
97 N.M. 745, 643 P.2d 614.

When permissive language mandatory. — Permissive language may be construed as
mandatory when it plainly appears that the legislature intended to impose a ministerial
duty upon a public official or agency rather than entrust the agency with a judgmental
function. A mandatory construction is normally suggested when the public or an
individual has a claim de jure which demands that the power conferred upon the
administrative agency be exercised for the benefit of that claim. 1971 Op. Att'y Gen. No.
71-104.
Notes of Decisions
Cited in 43 cases (8 in the last 5 years), 2001–2024 · leading case: Rivera v. Am. Gen. Fin. Servs., Inc., 259 P.3d 803 (N.M. 2011).
Sort: Relevance Newest Treatment
Rivera v. Am. Gen. Fin. Servs., Inc., 259 P.3d 803 (N.M. 2011). · cites it 2× “Grant concluded that, where the designation of a particular set of rules “has implications that may substantially affect the substantive outcome of the resolution,” the parties’ selection of those rules is integral to the agreement to arbitrate.”
State v. RUDY B., 216 P.3d 810 (N.M. Ct. App. 2009). · cites it 4× “In order to make those determinations, the trial court is directed to consider a number of factors, including the circumstances of the incident, the offender's level of intent, personal attributes and history of the offender, as well as "any other relevant factor, provided that…”
New Mexico Dep't of Health v. Compton, 34 P.3d 593 (N.M. 2001). · cites it 4× “In addition, Section 43-1-11(D) provides that a court which makes the appropriate findings for a thirty-day commitment "shall hear further evidence as to whether the client is capable of informed consent" for purposes of determining whether to appoint a treatment guardian,…”
New Mexico Bd. of Veterinary Med. v. Riegger, 164 P.3d 947 (N.M. 2007). · cites it 2× “See NMSA 1978, § 12-2A-4(A) (1997) (“ ‘Shall’ .”
Wallbro v. Nolte, 2022 NMCA 027 (N.M. Ct. App. 2021). · cites it 2× “2d 1266 ); see also NMSA 1978, § 12-2A-4(A) (1997) (“ ‘Shall’ and ‘must’ express a duty, obligation, requirement 6The certifying language on the death certificate states, “On the basis of examination and/or investigation, in my opinion this death occurred at the time, date and…”
Corum v. Roswell Senior Living, LLC, 248 P.3d 329 (N.M. Ct. App. 2010). · cites it 2× “” (emphasis added)); NMSA 1978, § 12-2A-4 (1997) (constructing statutes and rules that contain “ ‘[sjhall’ and ‘must’ to express a duty, obligation, requirement or condition precedent”).”
Blue Canyon Well Ass'n v. Jevne, 410 P.3d 251 (N.M. Ct. App. 2017). · cites it 2× “" NMSA 1978, § 12-2A-4(A), (B) (1997). However, in this instance, the power, authority, privilege or right signaled by the use of the word "may" in the statute is not the power, authority, privilege, or right to file documents.”
Oldham v. Oldham, 247 P.3d 736 (N.M. 2011). · cites it 2× “Section 40-4-20(B) provides in relevant part that the domestic relations court “shall conclude the proceedings” for “determination, division and distribution of marital property rights and debts .”
State Ex Rel. Child., Youth & Families Dep't v. John R., 2009 NMCA 25 (N.M. Ct. App. 2009). · cites it 2× “See NMSA 1978, § 12-2A-4(A) (1997) (defining the word “shall” as expressing a duty, obligation, or requirement).”
State Ex Rel. Madrid v. UU Bar Ranch Ltd. P'ship, 114 P.3d 399 (N.M. Ct. App. 2005). · cites it 2× “1984)); see also NMSA 1978, § 12-2A-4(A) (1997) (“‘Shall’ and ‘must’ express a duty, obligation, requirement or condition precedent.”
State v. Chadwick-McNally, 414 P.3d 326 (N.M. 2018). · cites it 2× “The district court correctly concluded that Defendant is precluded under the Act from presenting evidence of mitigating circumstances for sentencing purposes.”
State v. Chadwick-McNally, 2018 NMSC 18 (N.M. 2018). · cites it 2× “The inability to exercise any sentencing discretion precludes the admission of mitigating evidence for sentencing purposes. The district court correctly concluded that Defendant is precluded under the Act from presenting evidence of mitigating circumstances for sentencing…”
Show all 43 citing cases →
— N.M. Stat. § 12-2A-4(A) — 32 cases
Rivera v. Am. Gen. Fin. Servs., Inc., 259 P.3d 803 (N.M. 2011). “Grant concluded that, where the designation of a particular set of rules “has implications that may substantially affect the substantive outcome of the resolution,” the parties’ selection of those rules is integral to the agreement to arbitrate.”
State v. RUDY B., 216 P.3d 810 (N.M. Ct. App. 2009). “In order to make those determinations, the trial court is directed to consider a number of factors, including the circumstances of the incident, the offender's level of intent, personal attributes and history of the offender, as well as "any other relevant factor, provided that…”
New Mexico Bd. of Veterinary Med. v. Riegger, 164 P.3d 947 (N.M. 2007). “See NMSA 1978, § 12-2A-4(A) (1997) (“ ‘Shall’ .”
Wallbro v. Nolte, 2022 NMCA 027 (N.M. Ct. App. 2021). “2d 1266 ); see also NMSA 1978, § 12-2A-4(A) (1997) (“ ‘Shall’ and ‘must’ express a duty, obligation, requirement 6The certifying language on the death certificate states, “On the basis of examination and/or investigation, in my opinion this death occurred at the time, date and…”
Blue Canyon Well Ass'n v. Jevne, 410 P.3d 251 (N.M. Ct. App. 2017). “" NMSA 1978, § 12-2A-4(A), (B) (1997). However, in this instance, the power, authority, privilege or right signaled by the use of the word "may" in the statute is not the power, authority, privilege, or right to file documents.”
— N.M. Stat. § 12-2A-4(B) — 7 cases
New Mexico Dep't of Health v. Compton, 34 P.3d 593 (N.M. 2001). “In addition, Section 43-1-11(D) provides that a court which makes the appropriate findings for a thirty-day commitment "shall hear further evidence as to whether the client is capable of informed consent" for purposes of determining whether to appoint a treatment guardian,…”
DeMichele v. State Taxation & Revenue Dep't, 2015 NMCA 095 (N.M. Ct. App. 2015).
City of Albuquerque v. State, 2002 NMCA 024 (N.M. Ct. App. 2002).
City of Albuquerque v. MUN. BOUNDARY COM'N, 41 P.3d 933 (N.M. Ct. App. 2002).
Romero v. Tafoya, 527 P.3d 641 (N.M. Ct. App. 2022).
— N.M. Stat. § 12-2A-4(C) — 2 cases
Trinosky v. Johnstone, 252 P.3d 829 (N.M. Ct. App. 2011).
Warner v. Calvert, 258 P.3d 1125 (N.M. Ct. App. 2011).
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