N.M. Stat. § 31-9-1 (2026)

A. When a party or the court raises a question as to a defendant's competency to
stand trial in a criminal case, the proceeding shall be suspended until the issue is
determined.

    B. Unless the case is dismissed upon motion of a party or through diversion, if the
question of a defendant's competency is raised in a court other than a district court or
metropolitan court, the case shall be transferred to the district court; provided that if the
question of a defendant's competency is raised in a metropolitan court and the court
determines that the defendant is not competent to stand trial, the case shall be
transferred to the district court.

History: 1978 Comp., § 31-9-1, enacted by Laws 1988, ch. 107, § 1 and by 1988, ch.
108, § 1; 1989, ch. 94, § 1; 1993, ch. 240, § 1; 1993, ch. 249, § 1; 2025, ch. 4, § 1; 2025
(1st S.S.), ch. 4, § 1.

                                      ANNOTATIONS

Repeals and reenactments. — Laws 1988, ch. 108, § 1 and Laws 1988, ch. 107, § 1,
both approved March 8, 1988, repealed former 31-9-1 NMSA 1978, as amended by
Laws 1987, ch. 353, § 1, and enacted identical new sections designated 31-9-1 NMSA
1978, effective May 18, 1988.

Cross references. — For the interstate compact on mentally disordered offenders, see
31-5-10, 31-5-11 NMSA 1978.

For commitment of the mentally ill, see 43-1-2 to 43-1-23 NMSA 1978.

For rule of criminal procedure governing defenses of insanity, incompetency, and lack of
capacity, see Rule 5-602 NMRA.

The 2025 (1st S.S.) amendment, effective October 3, 2025, provided for a metropolitan
court to retain jurisdiction of a case in which the question of a defendant's competency
is raised unless the metropolitan court determines that the defendant is not competent
to stand trial; in Subsection B, after the first occurrence of "district court" added "or
metropolitan court", and after the second occurrence of "district court" added "provided
that if the question of a defendant's competency is raised in a metropolitan court and the
court determines that the defendant is not competent to stand trial, the case shall be
transferred to the district court".

The 2025 amendment, effective June 20, 2025, clarified language related to raising the
issue of a defendant's competency to stand trial; after the section heading, deleted
"Whenever it appears that there is a question as to the defendant's competency to
proceed in a criminal case, any further proceeding in the cause" added new subsection
designation "A"; in Subsection A, after the subsection designation, added "When a party
or the court raises a question as to a defendant's competency to stand trial in a criminal
case, the proceeding", and after "until the issue is determined", deleted the remainder of
the paragraph; and added Subsection B.

1993 amendments. — Identical amendments to this section were enacted by Laws
1993, ch. 240, § 1 and Laws 1993, ch. 249 § 1, both approved on April 6, 1993, and
both effective June 18, 1993, which inserted "to proceed in a criminal case" in the first
sentence, substituted "Unless the case is dismissed upon motion of a party, when" for
"If" at the beginning of the second sentence and added the third sentence. The section
is set out above as amended by Laws 1993, ch. 249, § 1. See 12-1-8 NMSA 1978.

The 1989 amendment, effective July 1, 1989, inserted "or a metropolitan court" in the
second sentence.

Incompetency is distinct from insanity. — A claim of incompetency to stand trial is
distinct from the defense of insanity. The competency issue is whether a defendant
understands the nature and significance of the proceedings, has a factual
understanding of the charges, and is able to assist defense counsel in defendant’s
defense. The insanity defense concerns a defendant’s mental state at the time the
offense was committed. State v. Najar, 1986-NMCA-068, 104 N.M. 540, 724 P.2d 249,
cert. denied, 104 N.M. 460, 722 P.2d 1182.
Failure to determine competency. — Where defense counsel raised the issue of
defendant’s competency at defendant’s preliminary hearing in magistrate court; the
case was then transferred to district court; the district court ordered a competency
evaluation of defendant; based on the results of the evaluation, defense counsel was
satisfied that defendant was competent to stand trial, and the court entered an order
finding defendant competent to stand trial; defense counsel again raised the issue of
defendant’s competency on the day of trial, prior to the start of trial; the court took no
action and proceeded to trial; during the trial, defendant made noises, talking to
someone who was not present in the courtroom; the court admonished defendant not to
disrupt the trial; defense counsel attempted, but the court refused, to allow defense
counsel to raise the issue of defendant’s competency; the jury returned a verdict of
guilty; defense counsel again raised the issue of defendant’s competency; the court
then permitted defense counsel to fully raise the issue and instructed defense counsel
to request a competency evaluation; based on the evaluation, the court found defendant
to be incompetent, but declined to dismiss the charges and proceeded to sentence
defendant, defendant was denied due process of law because the court erred when it
refused to permit defense counsel to raise the issue of defendant’s competency prior to
and during trial, when it failed to stay the proceedings pending a determination of
whether a reasonable doubt existed as to defendant’s competency to stand trial, and
after finding defendant incompetent. State v. Montoya, 2010-NMCA-067, 148 N.M. 495,
238 P.3d 369, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180.

Requirements on court. — Whenever a legitimate concern about the present ability of
a defendant to consult and understand is brought to the court's attention, the court is
required to consider whatever competency-related evidence is before the court and to
determine whether there exists a reasonable doubt as to the defendant's competency to
stand trial. If the court determines that there is reasonable doubt as to defendant's
competency, the court must have defendant's competency professionally evaluated by a
qualified professional who must submit a report to the court. State v. Flores, 2005-
NMCA-135, 138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011, 138 N.M.
586, 124 P.3d 564.

In considering whether reasonable doubt exists, the court must keep in mind the
requirement that defendant must have sufficient present ability to consult and
understand as required under due process of law. State v. Flores, 2005-NMCA-135,
138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011, 138 N.M. 586, 124
P.3d 564.

Constitutionality. — This article did not deprive an incompetent criminal defendant of
equal protection under the law, or of substantive or procedural due process. State v.
Rotherham, 1996-NMSC-048, 122 N.M. 246, 923 P.2d 1131.

Multi-step competency proceeding. — The New Mexico statutory scheme provides
for a multi-step competency proceeding when it appears that there is a question as to a
defendant's competency. State v. Webb, 1990-NMCA-077, 111 N.M. 78, 801 P.2d 660,
cert. quashed, 111 N.M. 164, 803 P.2d 253.
Due process requires incompetent defendants to be treated differently. The
conviction of an accused person while that person is legally incompetent violates due
process, and thus incompetent defendants cannot be brought to trial in the same
manner as competent defendants. State v. Gallegos, 1990-NMCA-104, 111 N.M. 110,
802 P.2d 15, cert denied, 111 N.M. 77, 801 P.2d 659.

Defendant cannot be validly tried while mentally incompetent to stand trial. State v.
Tartaglia, 1969-NMCA-110, 80 N.M. 788, 461 P.2d 921.

Effect of false claim of lack of competency. — Where the file and records
conclusively establish that his claim of lack of competency to stand trial was false,
defendant was not entitled to a hearing on the claim. State v. Kenney, 1970-NMCA-038,
81 N.M. 368, 467 P.2d 34.

Section provides for questioning of competency prior to suspension. — This
section provides that there must be a "question" as to the mental competency of a
defendant to stand trial, before the court is required to suspend proceedings in the
cause until the issue as to defendant's competency is determined. State v. Smith, 1969-
NMCA-101, 80 N.M. 742, 461 P.2d 157.

Question of competency requires more than mere assertion. — This section
requires there to be a "question" as to the accused's capacity to stand trial. The
"question" is not raised by an assertion of that issue, even though the assertion is in
good faith. As in the similar federal statute, there must be a showing of reasonable
cause for the belief that an accused is not competent to stand trial. State v. Hollowell,
1969-NMCA-105, 80 N.M. 756, 461 P.2d 238.

Counsel's impressions of defendant's mental state insufficient. — "Wondering"
about defendant's mental capacity which is based solely on counsel's impression is not
reasonable cause for a belief that defendant is incompetent to stand trial. State v.
Hovey, 1969-NMCA-049, 80 N.M. 373, 456 P.2d 206.

When court justified in proceeding without competency hearing. — Defense
counsel's representations to the trial court that the defendant was competent to plead
guilty and responsible for his actions effectively removed any question of competency
from the case and justified court in proceeding without competency hearing, despite
previously ordered psychiatric examination of defendant. State v. Bius, 1973-NMCA-
057, 85 N.M. 98, 509 P.2d 573.

Motion must include grounds for belief of lack of capacity. — A motion on behalf of
an accused for a judicial determination of mental competency to stand trial shall set
forth the ground for belief that such mental capacity is lacking. When the motion does
not set forth grounds for reasonable cause to believe the defendant may be insane or
mentally incompetent, the motion can be denied. "The statute requires such an
examination only when it is shown that there is reasonable cause to believe that an
accused may be presently insane or otherwise mentally incompetent." State v. Hovey,
1969-NMCA-049, 80 N.M. 373, 456 P.2d 206.

Court not required to grant motion for examination. — An examination is not
necessary, nor is the court required to grant a motion seeking such examination unless
there is a question as to the mental capacity of defendant. State v. Morales, 1970-
NMCA-036, 81 N.M. 333, 466 P.2d 899, cert. denied, 81 N.M. 305, 466 P.2d 871, cert.
denied, 400 U.S. 842, 91 S. Ct. 84, 27 L. Ed. 2d 77.

Possible prejudicial statement of expert not grounds for error. — Statement of
medical expert that defendant had no mental disease either at the time of the
commission of the criminal act or at the time of trial when the reason for testimony
concerning defendant's mental condition at the time of trial was because the medical
expert's examination had been primarily to determine defendant's present competency
to stand trial found not to be error although possibly prejudicial. State v. Lopez, 1969-
NMCA-057, 80 N.M. 599, 458 P.2d 851, cert. denied, 80 N.M. 607, 458 P.2d 859, cert.
denied, 398 U.S. 942, 90 S. Ct. 1860, 26 L. Ed. 2d 279 (1970).

Trial court's failure to determine competency not error. — Where defendant's claim
is that the trial court erred in failing to judicially determine his mental competency and
the context of this contention is that the motion was never called to the court's attention
and no ruling was invoked; although, prior opinions indicate that an issue as to
defendant's mental competency may still be litigated, still they do not support the view
that a trial court errs in failing to decide an issue on which a ruling has not been
invoked. State v. Madrigal, 1973-NMCA-116, 85 N.M. 496, 513 P.2d 1278, cert. denied,
85 N.M. 483, 513 P.2d 1265.

Initial orders were not final orders subject to appellate review. — Where the trial
court had made only the initial orders in a multi-part proceeding to determine
defendant's competency to stand trial for murder, the orders finding defendant
dangerous and incompetent to stand trial from which he appealed were not final orders
subject to appellate review. State v. Webb, 1990-NMCA-077, 111 N.M. 78, 801 P.2d
660, cert. quashed, 111 N.M. 164, 803 P.2d 253.

Competency of defendants in courts of limited jurisdiction. — Except for
metropolitan courts, courts of limited jurisdiction have no authority to hold competency
hearings. 2003 Op. Att'y Gen. No. 03-04.

Courts of limited jurisdiction have no authority to commit defendants to a mental health
facility. 2003 Op. Att'y Gen. No. 03-04.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law § 79 et
seq.

Presumption of continuing insanity as applied to accused in criminal case, 27 A.L.R.2d
121.
Constitutional right to jury trial in proceeding for adjudication of incompetency or
insanity, 33 A.L.R.2d 1145.

Unanimity of verdict in proceedings to determine sanity of one accused of crime, 42
A.L.R.2d 1468.

Right to counsel in insanity or incompetency adjudication proceedings, 87 A.L.R.2d 950.

Appealability of orders or rulings, prior to final judgment in criminal case, as to
accused's mental competency, 16 A.L.R.3d 714.

Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in
criminal case, 17 A.L.R.3d 146.

Admissibility on issue of sanity of expert opinion based partly on a medical,
psychological or hospital report, 55 A.L.R.3d 551.

Adequacy of defense counsel's representation of criminal client regarding
incompetency, insanity, and related issues, 17 A.L.R.4th 575.

Competency to stand trial of criminal defendant diagnosed as "mentally retarded" -
modern cases, 23 A.L.R.4th 493.

Malpractice liability based on prior treatment of mental disorder alleged to relate to
patient's conviction of crime, 28 A.L.R.4th 712.

Competency to stand trial of criminal defendant diagnosed as "schizophrenic" - modern
state cases, 33 A.L.R.4th 1062.

Admissibility of results of computer analysis of defendant's mental state, 37 A.L.R.4th
510.

Pyromania and the criminal law, 51 A.L.R.4th 1243.

Probation revocation: insanity as defense, 56 A.L.R.4th 1178.

Adequacy of defense counsel's representation of criminal client - issues of
incompetency, 70 A.L.R.5th 1.

Adequacy of defense counsel's representation of criminal client - pretrial conduct or
conduct at unspecified time regarding issues of insanity, 72 A.L.R.5th 109.

Incompetency at time of offense or trial as ground for vacating or setting aside sentence
under 28 U.S.C. § 2255, 7 A.L.R. Fed. 565.
Notice to government of defense based upon defendant's mental condition at time of
alleged crime, and court-ordered psychiatric examination thereon, under Rule 12.2,
Federal Rules of Criminal Procedure, 63 A.L.R. Fed. 552.

Competency to stand trial of criminal defendant diagnosed as "schizophrenic" - modern
federal cases, 63 A.L.R. Fed. 696.

Pathological gambling as basis of defense of insanity in federal criminal case, 76 A.L.R.
Fed. 749.