N.M. Stat. § 28-2-4 (2026)

employment or license.
    A. Any board or other agency having jurisdiction over employment by the state or
any of its political subdivisions or the practice of any trade, business or profession may
refuse to grant or renew or may suspend or revoke any public employment or license or
other authority to engage in the public employment, trade, business or profession for
one or both of the following causes:

       (1)    where the applicant, employee or licensee has been convicted of a felony
and the criminal conviction directly relates to the particular employment, trade, business
or profession; and

        (2)     where the applicant, employee or licensee has been convicted of
homicide, kidnapping, human trafficking, trafficking in controlled substances, criminal
sexual penetration or related sexual offenses or child abuse and the applicant,
employee or licensee has applied for reinstatement, renewal or issuance of a teaching
certificate, a license to operate a child-care facility or employment at a child-care facility,
regardless of rehabilitation.

   B. The board or other agency shall explicitly state in writing the reasons for a
decision that prohibits the person from engaging in the employment, trade, business or
profession if the decision is based in whole or in part on conviction of any crime
described in Paragraphs (1) and (2) of Subsection A of this section.

History: 1953 Comp., § 41-24-4, enacted by Laws 1974, ch. 78, § 4; 1985, ch. 234, § 1;
1997, ch. 238, § 5; 1997, ch. 251, § 1 2021 (1st S.S.), ch. 3, § 2.

                                      ANNOTATIONS
The 2021 (1st S.S.) amendment, effective June 29, 2021, removed misdemeanor
convictions involving moral turpitude and that relate to the particular employment, trade,
business or profession from the permissible causes for denying, revoking or suspending
public employment or a license to engage in a trade, business or profession, and
removed an agency's authority to deny public employment or a professional license for
felony and misdemeanor convictions that do not relate to a particular employment
position; in Subsection A, after "business or profession for", deleted "any one or any
combination" and added "one or both", in Paragraph A(1), after "convicted of a felony",
deleted "or a misdemeanor involving moral turpitude", deleted former Paragraph A(2)
and redesignated former Paragraph A(3) as Paragraph A(2); in Subsection B, after
"Paragraphs (1) and", changed "(3)" to "(2)", and deleted "Completion of probation or
parole supervision or expiration of a period of three years after final discharge or
release from any term of imprisonment without any subsequent conviction shall create a
presumption of sufficient rehabilitation for purposes of Paragraph (2) of Subsection A of
this section.".

1997 Amendments. —

Laws 1997, ch. 251, § 1, effective July 1, 1997, inserted "or employee" in two places
and "a license to operate a child-care facility or employment at a child-care facility" in
Paragraph A(3).

Laws 1997, ch. 238, § 5, effective June 20, 1997, in Paragraph A(3), inserted "homicide,
kidnapping" following "convicted of" near the beginning and "renewal" following
"reinstatement" near the end.

The purpose of a license revocation proceeding is not to punish the licensee but to
protect the public from practitioners who do not possess the necessary qualifications.
Varoz v. N.M. Bd. of Podiatry, 1986-NMSC-051, 104 N.M. 454, 722 P.2d 1176.

Content of notice of contemplated action. — The "evidence" to be set out in the
notice of contemplated action under Section 61-1-4 NMSA 1978 is the evidence of the
ground or grounds to be relied upon in taking the contemplated action under former
Section 61-5-14 NMSA 1978, not the evidence to the adduced by way of explanation
and determination of rehabilitation under Criminal Offender Employment Act. Weiss v.
N.M. Bd. of Dentistry, 1990-NMSC-077, 110 N.M. 574, 798 P.2d 175.

Jury determination of guilt relevant concern. — For purposes of this article, a jury
determination of a teacher's guilt of sexual misconduct with a minor acted as a
conviction, despite subsequent dismissal of the case after the teacher completed his
deferred sentence. Garcia v. State Bd. of Educ., 1984-NMCA-102, 102 N.M. 306, 694
P.2d 1371, cert. denied, 102 N.M. 293, 694 P.2d 1358 (1985).

Decertified teacher has burden of proving rehabilitation. — A teacher who was
found guilty of sexual misconduct with a minor was convicted of a crime directly relating
to the teaching profession and, therefore, had the burden of showing, upon application
for recertification, that he had been sufficiently rehabilitated. Garcia v. State Bd. of
Educ., 1984-NMCA-102, 102 N.M. 306, 694 P.2d 1371, cert. denied, 102 N.M. 293, 694
P.2d 1358 (1985).

Revocation of dental license. — Where a dentist was convicted of four counts of
making or permitting a false claim for reimbursement for public assistance services, a
conviction itself, as distinguished from the underlying conduct, is a sufficient basis for
revoking a dental license. Weiss v. N.M. Bd. of Dentistry, 1990-NMSC-077, 110 N.M.
574, 798 P.2d 175.

Meaning of rehabilitation. — While "rehabilitation" is not defined in this section
(although the statute does create a presumption of rehabilitation after completion of
parole, or after a certain period has elapsed after release from prison), its dictionary
definition is "to restore a condition of good health, ability to work or the like". Bertrand v.
N.M. State Bd. of Educ., 1975-NMCA-145, 88 N.M. 611, 544 P.2d 1176, cert. denied,
89 N.M. 5, 546 P.2d 70 (1976).

Board must state reasons why applicant has not been rehabilitated and may not
rely solely on the fact of conviction to deny an application. Garcia v. State Bd. of Educ.,
1984-NMCA-102, 102 N.M. 306, 694 P.2d 1371, cert. denied, 102 N.M. 293, 694 P.2d
1358 (1985).

Distinction in treatment of crimes relates to burden of proof. — The distinction in
treatment, under this section, between crimes that directly relate to a profession and
crimes that do not directly relate to a profession concerns the burden of proof: under
Subsection A(1), an applicant for issuance or reinstatement of a license or certificate
has the burden of proving that he or she has been sufficiently rehabilitated, while, under
Subsection A(2), there is a presumption of rehabilitation and the board or agency has
the burden of proving an applicant for issuance or reinstatement of a license or
certificate has not been sufficiently rehabilitated. N.M. Bd. of Pharmacy v. Reece, 1983-
NMSC-080, 100 N.M. 339, 670 P.2d 950.

Where court accepted board rehabilitation decision. — Probative evidence of
rehabilitation of a teacher who was on one year's probation for one count of distribution
of marijuana included her conscientious and successful performance at her job and the
parents' perception of her as a person with whom they would trust their children; but
evidence that she had become angry when her probation officer would not let her see
her file, made a derogatory comment about the laws and "narcs," told a student who
asked her about drugs that he could get in some trouble because of some bad laws, but
for him to do what he wanted, was probative of what the board could conclude was a
poor attitude towards criminal offenses for one who was a teacher, and since the state
board members spoke to her at some length themselves and were able to draw their
own impressions of her progress towards rehabilitation, the appellate court would not
substitute its judgment for that of the board. Bertrand v. N.M. State Bd. of Educ., 1975-
NMCA-145, 88 N.M. 611, 544 P.2d 1176, cert. denied, 89 N.M. 5, 546 P.2d 70 (1976).
Standard for use of conviction to revoke license. — In order for a conviction to be
used as a basis for a license revocation, the licensing agency must explicitly state its
reasons for a decision prohibiting the licensee from engaging in his or her employment
or profession, and the agency must find that the licensee has not been sufficiently
rehabilitated to warrant the public trust and must give reasons for this finding. Weiss v.
N.M. Bd. of Dentistry, 1990-NMSC-077, 110 N.M. 574, 798 P.2d 175.

Writing requirement explained. — When a decision is made on grounds that a
criminal conviction directly relates to a person's profession, the reasons for such a
decision must be explicitly stated in writing. It is not sufficient to merely recite the
language of the statute, but rather the "reasons" for the conclusion that there is a direct
relation must be given, especially so that a reviewing body may know the reasons for
the administrative body's conclusion; and if the conviction of a crime is to operate as
other than an automatic bar to employment, the administrative agencies must explain
what they perceive the detrimental effect of employment to be. Bertrand v. N.M. State
Bd. of Educ., 1975-NMCA-145, 88 N.M. 611, 544 P.2d 1176, cert. denied, 89 N.M. 5,
546 P.2d 70 (1976).

Scope of writing required under Subsection B. — Subsection B of Section 28-2-4
NMSA 1978 requires the board to state the reasons for its decision that the crime for
which the professional was convicted directly relates to the practice of the profession,
and also the reasons, if any, why the professional has not been rehabilitated and why
he should be prevented from practicing the profession. N.M. Bd. of Pharmacy v. Reece,
1983-NMSC-080, 100 N.M. 339, 670 P.2d 950.

Knowledge of public record not imputed to estop dismissal. — Where the local
school board did not have knowledge of a teacher's conviction until approached by her
probation officer, although it was a matter of public record, the court of appeals declined
to impute this knowledge to the board so as to estop it from dismissing her. Bertrand v.
N.M. State Bd. of Educ., 1975-NMCA-145, 88 N.M. 611, 544 P.2d 1176, cert. denied,
89 N.M. 5, 546 P.2d 70 (1976).

Prejudicial error resulted from failure to follow revocation procedures. — Failure
of real estate commission to follow the procedures established by this section in its
revocation of a real estate license for conviction of conspiracy to import marijuana was
prejudicial error. McCoy v. N.M. Real Estate Comm'n, 1980-NMSC-081, 94 N.M. 602,
614 P.2d 14 (1980).

Required procedure for denial, suspension, or revocation of real estate license. —
In each instance in which the real estate commission contemplates the denial,
suspension or revocation of a license because of a criminal conviction, certain steps
should be followed: 1) whether the conviction directly relates or does not directly relate
to real estate, notice should be given to the licensee that the basis for the action is
warranted by the Criminal Offender Employment Act; 2) evidence should be introduced
on behalf of the commission supporting whether the conviction is directly related or not
directly related to the business of a real estate broker or salesperson, and whether
sufficient rehabilitation has been made, if required by the Criminal Offender
Employment Act; 3) findings should be made after the hearing to uphold the decision of
the commission under the Criminal Offender Employment Act as well as under the Real
Estate Licensing Act. 1982 Op. Att'y Gen. No. 82-02.

Law reviews. — For annual survey of New Mexico law relating to administrative law,
see 12 N.M.L. Rev. 1 (1982).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 51 Am. Jur. 2d Licenses and Permits §§
56, 58, 106, 142; 63A Public Officers and Employees §§ 48 to 50, 184 to 186, 241 to
243, 291.

53 C.J.S. Licenses §§ 39, 52; 67 C.J.S. Officers and Public Employees §§ 22, 101, 110,
125.