2018 New Mexico Statutes
Chapter 10 - Public Officers and Employees
Article 11 - Retirement of Public Officers and Employees Generally
Section 10-11-135 - Funds not subject to process.

Except as provided in Sections 10-11-136 and 10-11-136.1 NMSA 1978, none of the money, pensions or other benefits mentioned in the Public Employees Retirement Act shall be assignable either in law or in equity or be subject to execution, levy, attachment, garnishment or other legal process.

History: Laws 1987, ch. 253, § 135; 1989, ch. 125, § 1; 1990, ch. 49, § 14.

Cross references. — For exemption from legal process for Judicial Retirement Act benefits, see 10-12B-7 NMSA 1978.

For exemption from legal process for Magistrate Retirement Act benefits, see 10-12C-7 NMSA 1978.

For exemption from legal process for Educational Retirement Act benefits, see 22-11-42 NMSA 1978.

For exemption from legal process for interest from state police pension fund, see 29-4-10 NMSA 1978.

For exemption from legal process for married persons or heads of households, see 42-10-1 NMSA 1978.

For rules governing garnishment and writs of execution in the district, magistrate, and metropolitan courts, see Rules 1-065.1, 2-801, and 3-801 NMRA, respectively.

For form for claim of exemptions on executions, see Rule 4-803 NMRA.

For form for order on claim of exemption and order to pay in execution proceedings, see Rule 4-804 NMRA.

For form for application for writ of garnishment and affidavit, see Rule 4-805 NMRA.

For form for notice of right to claim exemptions from execution, see Rule 4-808A NMRA.

For form for claim of exemption from garnishment, see Rule 4-809 NMRA.

Repeal of tax exemption. — Because no private contractual rights were granted by the retirement plan, there was no impairment or breach of contract resulting from the 1990 repeal of the tax exemption provision and, although the plan conferred property rights that vested upon accumulating minimum earned service credits, those rights did not include the right to receive pension benefits exempt from tax. Pierce v. State, 1996-NMSC-001, 121 N.M. 212, 910 P.2d 288.

Because the retirement plan provided no contractual or vested right to receive an irrevocable tax exemption, there was no constitutionally protected private interest in the tax exemption and there was no due process violation when the exemption was repealed. Pierce v. State, 1996-NMSC-001, 121 N.M. 212, 910 P.2d 288.

Income tax exemptions may be properly denied. — The legislature may grant a special income tax exemption to one kind of public employee, teachers, yet deny the same exemption to other public employees. Vaughn v. State Taxation & Revenue Dep't, 1982-NMCA-112, 98 N.M. 362, 648 P.2d 820.

Enactment reflects legislative recognition. — This enactment is simply a recognition by the legislature that for the most part persons drawing state retirement benefits are those of advanced age whose economic situation in living on a small fixed income in a period of rising prices is already perilous. 1961-62 Op. Att'y Gen. No. 62-13.

Effect of state income tax amendments. — The 1961 amendment of the statutes relative to state income tax did not have the effect of making annuities and benefits paid pursuant to the Public Employees' Retirement Act subject to state income tax. 1961-62 Op. Att'y Gen. No. 62-13.

"Trading" tax exemptions for health care. — Repeal of the state income tax exemptions for teacher pensions and public employee pensions does not remedy constitutional defects of the proposed retiree health care act under a theory that those exemptions would be "traded" for retiree health care. Those exemptions are not property rights, irrepealable contractual entitlements, or pension benefits. Hence, elimination of the favorable tax treatment for current retirees is not consideration for a multi-million dollar health care plan that the state proposes to provide them. 1990 Op. Att'y Gen. No. 90-03.

Law reviews. — For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).