Chapter 44 — Chapter 44

Every person imprisoned or otherwise restrained of his liberty, except in the cases in the following section specified, may prosecute a writ of habeas corpus, according to the provisions of this chapter, to obtain relief from such imprisonment or restraint, if it proves to be unl…

The person or officer on whom the writ is served shall bring the body of the person in his custody, according to the command of such writ, except in the case of the sickness of such person, as hereinafter provided in this chapter. History: Laws 1884, ch. 1, § 10; C.L. 1884, § 202…

directed; proceedings.] If the person upon whom such writ is duly served refuses or neglects to obey the same, by producing the party named in such writ, and making a full and explicit return to every such writ within the time required by the provisions of this chapter, and no su…

If a sheriff neglects to return such writ the attachment may be directed to any person designated therein, who shall have full power to execute the same, and such sheriff upon being brought up may be committed to the jail of any county other than his own. History: Laws 1884, ch. …

attachment.] The officer by whom any such attachment is issued may also at the same time or afterward issue a precept to the sheriff, or other person to whom such attachment was directed, commanding him to bring forthwith before such officers the party for whose benefit such writ…

The officer before whom such party is brought on such writ shall immediately after the return thereof, proceed to examine into the facts contained in such return, and into the cause of the confinement or restraint of such party, whether the same was before commitment for any crim…

If no legal cause is shown for such imprisonment or restraint, or for the continuation thereof, such officer shall discharge such party from the custody or restraint under which he is held. History: Laws 1884, ch. 1, § 15; C.L. 1884, § 2026; C.L. 1897, § 2795; Code 1915, § 2603; …

The officer shall forthwith remand such party, if it appears that he is detained in custody, either: A. by virtue of process issued by any court or judge of the United States in a case where such court or judge has exclusive jurisdiction; or B. by virtue of the final judgment or …

process.] If it appears on the return that the prisoner is in custody by virtue of civil process of any court legally constituted, or issued by an officer in the course of judicial proceedings before him, authorized by law, such prisoner can only be discharged in one of the follo…

But no officer on the return of any habeas corpus can inquire into the legality or justice of any judgment, decree or execution specified in Section 44-1-16 NMSA 1978. History: Laws 1884, ch. 1, § 18; C.L. 1884, § 2029; C.L. 1897, § 2798; Code 1915, § 2606; C.S. 1929, § 63-118; 1…

on bail.] If it appears that the party has been legally committed for any criminal offense, or if he appears, by the testimony offered with the return upon the hearing thereof, to be guilty of such an offense, although the commitment is irregular, the officer before whom such par…

The following persons are not entitled to prosecute such writ: persons committed or detained by virtue of the final judgment, conviction or decree of any competent tribunal or by virtue of an execution issued upon such judgment or decree; but no order of commitment for any allege…

In other cases the party shall be placed in custody of the person legally entitled thereto, or if no one is so entitled, he shall be discharged. History: Laws 1884, ch. 1, § 20; C.L. 1884, § 2031; C.L. 1897, § 2800; Code 1915, § 2608; C.S. 1929, § 63-120; 1941 Comp., § 25-1120; 1…

Until judgment is given upon the action, the officer before whom such party is brought may either commit such party to the custody of the sheriff of the county in which such officer is, or place him in such care or under such custody as his age and other circumstances require. Hi…

In criminal cases, notice of the time and place at which the writ is made returnable shall be given to the district attorney, if he is within the county; in other cases like notice shall be given to any person interested in continuing the custody or restraint of the party seeking…

committing magistrate's proceedings to be reviewed.] Hereafter all persons to whom bail has been denied or who are confined for failure to give bail, may have the benefit of a writ of habeas corpus for the purpose of being admitted to bail or having the bail reduced, and the cour…

examination of case de novo; decision.] When an application is made before any authority authorized by law to issue such writs of habeas corpus it shall be the duty of such officers to issue a writ of certiorari commanding the committing magistrate forthwith to send to said offic…

The party brought before any such officer on the return of any writ of habeas corpus, may deny any of the material facts set forth in the return, or allege any fact to show, either that his imprisonment or detention is unlawful, or that he is entitled to his discharge, which alle…

Whenever from the sickness or infirmity of the person directed to be produced by any writ of habeas corpus such person cannot, without danger, be brought before the officer before whom the suit is made returnable, the party in whose custody he is may state the fact in his return …

damages recoverable.] Obedience to any order for the discharge of any prisoner, granted pursuant to the provisions of this chapter, may be enforced by the officer issuing such writ or granting such order, by attachment, in the same manner as herein provided for a neglect to make …

corpus prohibited; when permissible.] No person who has been discharged upon a habeas corpus shall be again imprisoned or restrained for the same cause, unless indicted therefor, convicted thereof or committed for want of bail by some court of record having jurisdiction of the ca…

forfeiture.] If anyone, who has in his custody, or under his control, a person entitled to a writ of habeas corpus, whether a writ has been issued or not, transfers such prisoner to the custody, or places him under the power or control of another person, or conceals him, or chang…

verification.] Application for such writ shall be made by petition to any judge of the supreme court, signed and verified either by the party for whose relief it is intended, or by some person in his behalf, as follows: to the supreme or district court or to any judge thereof, be…

Any officer, or other person, refusing to deliver a copy of any order, warrant, process or other authority, by which he detains any person, to anyone who demands such copy and tenders the fees thereof, shall forfeit two hundred dollars [($200)] to the person so detained. History:…

Every writ of habeas corpus may be made returnable at a day certain, or forthwith, as the case may require, and shall be under the seal of the court. History: Laws 1884, ch. 1, § 30; C.L. 1884, § 2041; C.L. 1897, § 2811; Code 1915, § 2619; C.S. 1929, § 63-131; 1941 Comp., § 25-11…

restoration of prisoner.] It can only be served by an elector of this state, and the service thereof shall not be deemed complete unless the party serving the same tenders to the person in whose custody the prisoner is, if such person is a sheriff, constable or marshal, the fees …

directed.] Every writ of habeas corpus issued pursuant to this chapter may be served by delivering the same to the person to whom it is directed. If he cannot be found, it may be served by being left at the jail or other place in which the prisoner is confined, with any under off…

If the person on whom the writ ought to be served, conceals himself, or refuses admittance to the party attempting to serve the same, it may be served by affixing the same in some conspicuous place on the outside, either of his dwelling house or of the place where the party is co…

If the writ is returnable at a certain day, such return shall be made, and such prisoner produced at the time and place specified therein; if he is returnable forthwith, and the place is within twenty miles of the place of service, such return shall be made and such prisoner prod…

Nothing contained in this chapter shall be construed to restrain the power of any court to issue a writ of habeas corpus when necessary to bring before them any prisoner for trial, in any criminal case lawfully pending in the same court, or to bring any prisoner to be examined as…

The sheriff or person who shall be required to bring up a person on habeas corpus, if the person be held by virtue of any legal process directed to such person as an officer, shall be entitled to the same fees and allowances as are allowed to sheriffs for removing prisoners in ot…

expenses by state penitentiary.] If the petition for the writ is filed in any federal court, all the reasonably necessary costs, fees and expenses incurred or paid by the respondent shall be paid by the penitentiary of New Mexico. The budget of the penitentiary shall include an i…

jurisdictional proof required.] Whenever application for any such writ is made to any officer not residing within the district where the prisoner is detained, he shall require proof by oath of the party applying, or by other sufficient evidence, that there is no officer in such d…

The petition shall state in substance: A. that the person in whose behalf the writ is applied for is imprisoned or restrained of his liberty, the officer or person by whom he is so confined or restrained and the place where, naming both parties, if their names are known, or descr…

Every writ of habeas corpus issued under the provisions of this chapter shall be substantially in the following form: The state of New Mexico to the sheriff of, etc., or to A.B.: You are hereby commanded to have the body of C.D., by you imprisoned and detained, as it is said, tog…

Such writ of habeas corpus shall not be disobeyed for any defect of form. It is sufficient: A. if the person having the custody of the prisoner is designated either by his name or office, if he has any, or by his own name, or if both such names are unknown or uncertain, he may be…

If any officer herein authorized to grant writs of habeas corpus willfully refuses to grant such writ when legally applied for, he shall forfeit for any such offense, to the party aggrieved, one thousand dollars [($1,000)]. History: Laws 1884, ch. 1, § 8; C.L. 1884, § 2019; C.L. …

The person upon whom such writ is duly served shall state in his return plainly and unequivocally: A. whether he has or has not the party in his custody, or control, or under his restraint, and, if he has not, whether he has had the party in his custody, or under his control or r…

The writ of mandamus is regulated as in this chapter prescribed. History: Laws 1884, ch. 1, § 37; C.L. 1884, § 1992; C.L. 1897, § 2760; Code 1915, § 3411; C.S. 1929, § 86-101; 1941 Comp., § 26-101; 1953 Comp., § 22-12-1.

after answer.] If no answer is made a peremptory mandamus shall be allowed against the defendant; if an answer is made containing new matter, the plaintiff may, on the trial or other proceedings, avail himself of any valid objection to its sufficiency, or may countervail it by ev…

No other pleading or written allegation is allowed than the writ and answer. They shall be construed and amended in the same manner as pleadings in a civil action, and the issues thereby joined shall be tried and further proceedings had in the same manner as in a civil action. Hi…

If judgment is given for the plaintiff, he shall recover the damages which he has sustained, together with costs and disbursements, and a peremptory mandamus shall be awarded without delay. History: Laws 1884, ch. 1, § 46; C.L. 1884, § 2001; C.L. 1897, § 2769; Code 1915, § 3421; …

action for penalty barred.] Whenever a peremptory mandamus is directed to a public officer, body or board, commanding the performance of any public duty specially enjoined by law, if it appears to the court that such officer or any member of such body or board, without just excus…

That in all cases of proceedings by mandamus in any district court of this state, the final judgment of the court thereon shall be reviewable by appeal or writ of error in the same manner as now provided by law in other civil cases. History: Laws 1887, ch. 60, § 1; C.L. 1897, § 2…

For the purpose of hearing application for, and issuing writs of mandamus, the district courts shall be regarded as open at all times, wherever the judge of such court may be within the state. History: Laws 1884, ch. 1, § 50; C.L. 1884, § 2005; C.L. 1897, § 2774; Code 1915, § 341…

courts.] The district court has exclusive original jurisdiction in all cases of mandamus, except where such writ is to be directed to a district court or a judge thereof in his official capacity, in which case the supreme court has exclusive original jurisdiction, and in such cas…

It may be issued to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station; but though it may require an inferior tribunal to exercise its judgment, or proceed t…

obtain writ.] The writ shall not issue in any case where there is a plain, speedy and adequate remedy in the ordinary course of law. It shall issue on the information of the party beneficially interested. History: Laws 1884, ch. 1, § 39; C.L. 1884, § 1994; C.L. 1897, § 2762; Code…

The writ is either alternative or peremptory. The alternative writ shall state concisely the facts showing the obligation of the defendant to perform the act, and his omission to perform it, and command him, that immediately after the receipt of the writ, or at some other specifi…

When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance; in all other cases the alternative writ shall be first issued. History: Laws 1884…