A. The determination of whether a person covered by Section 60 [31-16-3 NMSA 1978] of the Indigent Defense Act is a needy person shall be deferred until his first appearance in court or in a suit for payment or reimbursement under Section 66 [31-16-9 NMSA 1978] of the Indigent Defense Act, whichever occurs earlier. Thereafter, the court concerned shall determine, with respect to each proceeding, whether he is a needy person.

B. In determining whether a person is a needy person and the extent of his inability to pay, the court concerned may consider such factors as income, property owned, outstanding obligations and the number and ages of his dependents. Release on bail does not necessarily prevent him from being a needy person. In each case, the person shall, subject to the penalties for perjury, certify in writing or by other record material factors relating to his ability to pay as the court prescribes.

C. To the extent that a person covered by Section 60 of the Indigent Defense Act is able to provide for an attorney, the other necessary services and facilities of representation and court costs, the court may order him to provide for their payment.

History: 1953 Comp., § 41-22-5, enacted by Laws 1968, ch. 69, § 62.

Cross references. — For jury and witness fee fund, see 34-9-11 NMSA 1978.

Determination fails to meet constitutional mandate. — The limited determination of indigency under the standard of pauperism does not conform to constitutional mandate. Anaya v. Baker, 427 F.2d 73 (10th Cir. 1970).

Proper to require defendant to make reasonable showing of indigency. — A showing of an accused's indigency is a prerequisite to the right of a court-appointed counsel, and it is proper for the trial court to require the defendant to make a reasonable showing that he is unable to employ counsel. State ex rel. Peters v. McIntosh, 1969-NMSC-103, 80 N.M. 496, 458 P.2d 222.

Doubts resolved in favor of accused. — Although the courts recognize the relative concepts of indigency and that this determination should be made at the trial court level, doubts as to indigency should be resolved in favor of the accused. State ex rel. Peters v. McIntosh, 1969-NMSC-103, 80 N.M. 496, 458 P.2d 222.

Right of district court to determine indigency. — Although this rule makes it the duty of the district court to appoint counsel for the indigent person immediately upon receipt of a certificate of indigency from the committing magistrate, we do not construe this as depriving the district court of its right to determine whether such person is in fact indigent. State ex rel. Peters v. McIntosh, 1969-NMSC-103, 80 N.M. 496, 458 P.2d 222.

Court must make adequate inquiry into whether person needy. — Whether defendant has the financial means to procure counsel is a factual question. This factual question cannot be resolved without an adequate inquiry into the facts. State v. Anaya, 1966-NMSC-144, 76 N.M. 572, 417 P.2d 58.

When a defendant makes a reasonable showing of indigency, the trial court has a duty to inquire into the facts relied upon by the defendant. State v. Watchman, 1991-NMCA-010, 111 N.M. 727, 809 P.2d 641, cert. denied, 111 N.M. 529, 807 P.2d 227, overruled in part on other grounds by State v. Hosteen, 1996-NMCA-084, 122 N.M. 228, 923 P.2d 595.

Determination must be made before district court appearance. — The determination of the question of indigency must often be made before the otherwise normal appearance of the accused before the district court. To hold a preliminary hearing without counsel present, unless the right to counsel has been competently, intelligently and voluntarily waived, vitiates the hearing. State ex rel. Peters v. McIntosh, 1969-NMSC-103, 80 N.M. 496, 458 P.2d 222.

Court determination obligates public defender. — The legislature, understanding that courts determine indigence under the Indigent Defense Act (IDA), enacted 31-15-10 NMSA 1978 of the Public Defender Act (PDA) intending "every person without counsel who is financially unable to obtain counsel" to include all persons who courts determine are "needy" under the 31-16-5 NMSA 1978 of the IDA. Therefore, under the administrative system of the PDA and IDA, when a court determines that a defendant is "needy," the defendant is "financially unable to obtain counsel" under the PDA, and the department "shall represent" the defendant pursuant to 31-15-10 NMSA 1978, assuming the defendant is charged with a crime carrying a possible sentence of imprisonment. State ex rel. Quintana v. Schnedar, 1993-NMSC-033, 115 N.M. 573, 855 P.2d 562.

Construction with Public Defender Act. — The Indigent Defense Act and the Public Defender Act are consistent as amended: The IDA obligates courts to determine indigence, the PDA directs the department to adopt standards for determining indigence, and other statutes instruct courts to employ those standards. State ex rel. Quintana v. Schnedar, 1993-NMSC-033, 115 N.M. 573, 855 P.2d 562.

Claim of indigency in letter form sufficient. — If in fact defendant was indigent at time of filing notice of appeal, he was entitled to be represented by court-appointed counsel on his appeal; his letter stating he cannot pay costs is a sufficient claim of indigency. Barela v. State, 1970-NMCA-044, 81 N.M. 433, 467 P.2d 1005.

Effect of refusal to fill out certificate of indigency. — Defendant was not entitled to any appointed counsel because he refused to fill out, under oath, a certificate of indigency showing his income, and thus there was no showing that he was a needy person. State v. Pina, 1977-NMCA-020, 90 N.M. 181, 561 P.2d 43.

Borrowing ability one factor in determining financial means. — Neither the ability nor the inability to borrow money is the sole criterion. The question is whether defendant has the financial means to employ counsel. Borrowing ability is only one aspect of the defendant's "financial means." State v. Anaya, 1966-NMSC-144, 76 N.M. 572, 417 P.2d 58.

As well as property interest and employment. — The fact that defendant had an undefined interest in three items of property and the fact that he was employed prior to his arrest is insufficient to determine the question of defendant's financial ability to obtain counsel. State v. Anaya, 1966-NMSC-144, 76 N.M. 572, 417 P.2d 58.

Represented by employed counsel, but still indigent. — A defendant may be represented by employed counsel and still be indigent in connection with other matters pertaining to defense of the case. State v. Apodaca, 1969-NMCA-038, 80 N.M. 244, 453 P.2d 764.

Mandamus is not available to control judicial discretion unless there is a clear abuse of that discretion, or unless such action would prevent the doing of useless things. State ex rel. Peters v. McIntosh, 1969-NMSC-103, 80 N.M. 496, 458 P.2d 222.

Uncontested motion for determination of indigency. — When a defendant's motion for determination of indigency is uncontested, the better procedure in such cases is for the trial court to either grant the motion or to expressly indicate the basis for its denial. State v. Watchman, 1991-NMCA-010, 111 N.M. 727, 809 P.2d 641, cert. denied, 111 N.M. 529, 807 P.2d 227, overruled on other grounds by State v. Hosteen, 1996-NMCA-084, 122 N.M. 228, 923 P.2d 595.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21A Am. Jur. 2d Criminal Law § 1199 et seq.

Determination of indigency of accused entitling him to appointment of counsel, 51 A.L.R.3d 1108.

Determination of indigency entitling accused in state criminal case to appointment of counsel on appeal, 26 A.L.R.5th 765.