New Mexico Statutes

N.M. Stat. § 3-2-5 (2026)

Incorporation; duties of county commissioners after filing of

✓ current as of May 2026

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petition to act; population data required; election; right of appeal to
district court.
     A. After the petition for incorporation, together with the accompanying map or plat
and the municipal services and revenue plan have been filed with the board of county
commissioners, the board of county commissioners, in lieu of complying with the
requirements of Section 3-1-5 NMSA 1978, shall determine within thirty days after the
filing of the petition:

       (1)     from the voter registration list in the office of the county clerk if the signers
of the petition are qualified electors residing in the territory proposed to be incorporated;
or

      (2)    from the tax schedules of the county if any of the owners of the real estate
who signed the petition are delinquent in the payment of property taxes; and

      (3)     if the territory proposed to be incorporated is within an existing
municipality or within the urbanized area of a municipality.

   B. If the board of county commissioners determines that the territory proposed to be
incorporated is:

      (1)    not within the boundary of an existing municipality and not within the
urbanized area of a municipality; or
       (2)    within the urbanized area of another municipality and in compliance with
Section 3-2-3 NMSA 1978, the board of county commissioners shall accept the data
provided by the university of New Mexico geospatial and population studies group
regarding whether or not the territory proposed to be incorporated contains a population
density of not less than one person per acre.

   C. Within fifteen days after the date the university of New Mexico geospatial and
population studies group data and the municipal incorporation review team's report have
been filed with the board of county commissioners, the board of county commissioners
shall determine if the conditions for incorporation of the territory as a municipality have
been met as required in Sections 3-2-1 through 3-2-3 NMSA 1978 and shall have its
determination recorded in the minutes of its meeting.

   D. Based on the university of New Mexico geospatial and population studies group
data and the municipal incorporation review team's report, if the board of county
commissioners determines that the conditions for incorporation have not been met, the
board of county commissioners shall notify the petitioners of its determination by
publishing in a newspaper of general circulation in the territory proposed to be
incorporated, once, not more than ten days after its determination, a notice of its
determination that the conditions for incorporation have not been met. If there is no
newspaper of general circulation in the territory proposed to be incorporated, notice of
the determination shall be posted in eight public places within the territory proposed to
be incorporated.

    E. After the board of county commissioners has determined that all of the conditions
for incorporation of the territory as a municipality have been met, the board of county
commissioners shall hold an election on the question of incorporating the territory as a
municipality. Special elections for the incorporation of municipalities shall only be held
in June or July in odd-numbered years or July or August in even-numbered years and
shall be held pursuant to the provisions of the Local Election Act [Chapter 1, Article 22
NMSA 1978]. The county clerk shall notify the secretary of finance and administration
and the secretary of taxation and revenue of the date of the incorporation election within
ten days after the adoption of the resolution calling the election.

    F. The signers of the petition or a municipality within whose urbanized area the
territory proposed to be incorporated is located may appeal any determination of the
board of county commissioners to the district court pursuant to the provisions of Section

Notes of Decisions

Cited in 5 cases, 1958–2018 · leading case: Citizens for Incorporation, Inc. v. Bd. of Cnty. Commissioners, 858 P.2d 86 (N.M. Ct. App. 1993).

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Citizens for Incorporation, Inc. v. Bd. of Cnty. Commissioners, 858 P.2d 86 (N.M. Ct. App. 1993). · cites it 12× “The money shall be deposited with the county treasurer for payment of the census required in Section 3-2-5 NMSA 1978. Section 3-2-1. The district court found that the petition offered by Petitioners was deficient in two respects: (1) the signers did not “swear or affirm” on the…”

Provisional Gov't of Santa Teresa v. Doña Ana Cnty. Bd. of Cnty. Comm'rs, 429 P.3d 981 (N.M. Ct. App. 2018). · cites it 17× “Section 3-2-5 provides that the board will determine if the statutory requirements are met; if they are met, the board conducts an election in which residents of the territory vote on whether to incorporate.”

Johnston v. Bd. of Educ. of Portales Msd, 333 P.2d 1051 (N.M. 1958). · cites it 4× “, § 3-2-5, reading: "The word `election' shall be construed to mean and apply to all primary elections, general elections, special elections and municipal elections.”

Mark D. v. Mun. Boundary Comm'n, 1998 NMCA 025 (N.M. Ct. App. 1998). · cites it 2× “, NMSA 1978, §§ 3-2-5(D) to -7 (1965, as amended through 1985) (providing for separate notice by publication for proposed incorporation of a new municipality); NMSA 1978, § 3-24-9(C) (1993) (providing for separate published notice for an increase in municipal utility rates…”

Cox v. Mun. Boundary Com'n, 954 P.2d 1186 (N.M. Ct. App. 1998). · cites it 2× “, NMSA 1978, §§ 3-2-5(D) to -7 (1965, as amended through 1985) (providing for separate notice by publication for proposed incorporation of a new municipality); NMSA 1978, § 3-24-9(C) (1993) (providing for separate published notice for an increase in municipal utility rates…”

— N.M. Stat. § 3-2-5(B)(2) — 1 case

Citizens for Incorporation, Inc. v. Bd. of Cnty. Commissioners, 858 P.2d 86 (N.M. Ct. App. 1993). “The money shall be deposited with the county treasurer for payment of the census required in Section 3-2-5 NMSA 1978. Section 3-2-1. The district court found that the petition offered by Petitioners was deficient in two respects: (1) the signers did not “swear or affirm” on the…”

— N.M. Stat. § 3-2-5(C) — 1 case

— N.M. Stat. § 3-2-5(D) — 3 cases

Provisional Gov't of Santa Teresa v. Doña Ana Cnty. Bd. of Cnty. Comm'rs, 429 P.3d 981 (N.M. Ct. App. 2018). “Section 3-2-5 provides that the board will determine if the statutory requirements are met; if they are met, the board conducts an election in which residents of the territory vote on whether to incorporate.”

Mark D. v. Mun. Boundary Comm'n, 1998 NMCA 025 (N.M. Ct. App. 1998). “, NMSA 1978, §§ 3-2-5(D) to -7 (1965, as amended through 1985) (providing for separate notice by publication for proposed incorporation of a new municipality); NMSA 1978, § 3-24-9(C) (1993) (providing for separate published notice for an increase in municipal utility rates…”

Cox v. Mun. Boundary Com'n, 954 P.2d 1186 (N.M. Ct. App. 1998). “, NMSA 1978, §§ 3-2-5(D) to -7 (1965, as amended through 1985) (providing for separate notice by publication for proposed incorporation of a new municipality); NMSA 1978, § 3-24-9(C) (1993) (providing for separate published notice for an increase in municipal utility rates…”

— N.M. Stat. § 3-2-5(F) — 1 case

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