When does the New Mexico Public Education Department have to submit its annual special-appropriations budget request to the Legislative Finance Committee and the Department of Finance and Administration?

Plain-English summary

The Legislative Finance Committee asked the AG to clarify when the Public Education Department's special-appropriations request is due each year. PED has historically split its budget submissions: the agency operating budget by September 1 (like every other state agency), but its special "below the line" requests like teacher professional development and AP test waivers along with the public-school-fund recommendations on November 30.

The AG concluded the September 1 deadline applies to the special appropriations too. Section 6-3A-7(B) covers performance-based program budget requests and sets September 1 as the universal deadline, with no PED carve-out. Section 22-8-12.1(C)(2) creates the November 30 deadline for a narrower category: amendments to the public-school-finance formula, appropriations to the public school fund, and appropriations for pupil transportation and instructional materials. Those are formula-driven items that depend on enrollment estimates due from districts on October 15, which is why they get the later deadline.

PED's special agency-administered programs are not formula items. They live in PED's own operating budget and are evaluated as performance-based programs. They belong with the September 1 deadline.

What this means for you

If you are at the Public Education Department's budget office

Move the special-appropriations request into your September 1 submission. The opinion treats your historical practice of submitting these requests in November as untimely. The September 1 package should now include three things: the general agency operating budget under Section 6-3-19, the performance-based program request under Section 6-3A-7(B) (which now includes the special appropriations), and any other agency-level requests due that day.

The November 30 package shrinks to its statutory core: public-school-finance-formula amendments, public school fund appropriations for the next fiscal year, and pupil transportation and instructional materials. These are the items that depend on the October 15 enrollment estimates from districts.

If you are at LFC or DFA

Expect PED's special appropriations to land on September 1 going forward. Build that into your budget review timelines. Programs like teacher professional development, school leadership training, AP test waivers, and pregnant teen student support should be in PED's September submission, with sufficient performance metrics and program detail for the State Budget Division to evaluate.

If PED submits these requests late, the opinion gives LFC and DFA a basis to flag the timing problem. The opinion does not prescribe consequences for late submission, but the September 1 deadline is now formally identified in writing.

If you are a state legislator on appropriations or finance

The opinion is essentially a procedural fix. The substantive merits of PED's special appropriations are not addressed. But the timing change matters for legislative review: special appropriations land in the agency budget package alongside everything else, two months earlier than they used to.

If you would prefer the November 30 timing for PED's special appropriations to give districts and PED more time, the legislative fix is an amendment to either Section 6-3A-7(B) (carving out PED's special programs) or Section 22-8-12.1(C)(2) (broadening it to cover PED-administered programs).

If you administer or rely on a PED-funded special program

The funding cycle for your program now starts earlier. PED's request to LFC and DFA must be in by September 1, which means PED will need its program plans, performance data, and budget justification several weeks earlier. Check with PED's budget office about timing for the next cycle.

Common questions

Q: Why does PED have two budget categories?
A: PED runs both its own agency programs (teacher development, school leadership training, etc.) and the funding pipeline to local districts (public school fund). Two statutes govern those tracks. Section 6-3A-7(B) covers agency programs, Section 22-8-12.1(C)(2) covers the formula-driven district funding.

Q: Why is the public school fund deadline later?
A: The fund is calculated from district enrollment estimates due October 15. PED needs time after October 15 to run the formula and submit the resulting recommendations by November 30.

Q: Why aren't PED's special programs treated like the public school fund?
A: They do not depend on October 15 enrollment estimates. They are agency-administered programs evaluated under the performance-based program inventory. The plain language of Section 22-8-12.1(C)(2) is limited to formula items and does not cover them.

Q: What happens if PED submits late?
A: The opinion does not address consequences. As a practical matter, LFC and DFA review what they receive; a late submission risks being incomplete in the executive budget and short of full legislative review.

Q: Does this affect funding for districts?
A: No. The November 30 timeline for the public school fund recommendations is unchanged. Only the special, PED-administered programs move to September 1.

Q: Are there other state agencies with the same issue?
A: The opinion focuses on PED. Other agencies also have to comply with the September 1 deadline under Section 6-3A-7(B) for performance-based programs and Section 6-3-19 for general budget requests.

Background and statutory framework

New Mexico's state budget cycle has three relevant deadlines for PED:

Section 6-3-19 (1999) requires every state agency, including PED, to submit a general budget form by September 1.

Section 6-3A-7 (2004) governs performance-based program budgets, also due by September 1, in lieu of the general budget form. Performance-based programs are programs evaluated using quantitative or qualitative metrics and approved by the State Budget Division.

Section 22-8-12.1(C)(2) (2006) sets a November 30 deadline for PED to recommend three specific items to the Secretary of Finance and Administration: amendments to the public-school-finance formula, appropriations to the public school fund for the next fiscal year, and appropriations for pupil transportation and instructional materials.

The November 30 timing is calibrated to follow district enrollment estimates due October 15 under Sections 22-8-12.1(C)(2) and 22-8-23. PED needs that data to run the public-school-finance formula.

The opinion applies plain-meaning interpretation under Reule Sun Corp. v. Valles, 2010-NMSC-004, and the in pari materia canon under N.M. Attorney General v. NMPRC, 2011-NMSC-034. The two statutes can be read together without conflict because they cover different funding categories. Section 22-8-12.1(C)(2) does not contain a blanket PED extension; it is tied to formula items.

PED's "below the line" special appropriations (separate items housed under PED's operating budget in the General Appropriations Act per 2024 N.M. Laws, ch. 69, § 4) are agency programs, not formula items. They fall within Section 6-3A-7(B) and the September 1 deadline.

Citations and references

Statutes:
- NMSA 1978, § 6-3-19 (General agency budget requests)
- NMSA 1978, § 6-3A-7 (Performance-based budget requests)
- NMSA 1978, § 22-8-12.1(C)(2) (Public-school-finance recommendations)
- NMSA 1978, § 22-8-23 (Enrollment estimates)

Cases:
- Reule Sun Corp. v. Valles, 2010-NMSC-004, 147 N.M. 512
- N.M. Att'y Gen. v. NMPRC, 2011-NMSC-034, 150 N.M. 174

Source

• Landing page: https://nmdoj.gov/publication/opinion/2024-15-opinion-by-what-date-must-the-public-education-department-submit-its-annual-budget-request-for-special-appropriations/
• Original PDF: https://nmdoj.gov/wp-content/uploads/Attorney-General-Opinion-2024-15.pdf

Original opinion text

December 10, 2024
OPINION
OF
RAÚL TORREZ
Attorney General

Opinion No. 2024-15

To:

Senator George Muñoz, Representative Nathan Small, Legislative Finance
Committee

Re:

Opinion Request – By what date must the Public Education Department submit its annual
budget request for special appropriations?

Question
Under New Mexico law, when must the Public Education Department (PED) submit its annual
special appropriations request to the Legislative Finance Committee (LFC) and the Department of
Finance and Administration (DFA) for the request to be considered timely?
Answer
Pursuant to NMSA 1978, Section 6-3A-7 (2004), PED's annual special appropriations request
must be submitted to LFC and DFA on or before September 1.
Background
Each budget cycle, PED submits two categories of budget request: the first is a request for funds
for the agency itself, and the second is for the operating budgets of local public school districts.
The first of these categories, a request for agency appropriation, is governed by two statutes.
General operating budget requests by all state agencies, including PED, are governed by NMSA
1978, Section 6-3-19 (1999), which requires each agency to submit a budget form, including
information for all divisions, subdivisions and offices of the agency, no later than September 1 of
each year. Further, to the extent that an agency seeks budget requests for "performance-based
programs," or programs that are evaluated using quantitative or qualitative metrics and are subject
to approval by the state budget division, an agency is required to submit a "performance-based
budget request" to both the state budget division and the Legislative Finance Committee, pursuant

to NMSA 1978, Section 6-3A-7(B), in lieu of a budget request under Section 6-3-19. These forms
must be submitted no later than September 1 of each year. Section 6-3A-7(B).
The second category, requests for operating budgets for local school districts and charter schools,
is governed by NMSA 1978, Section 22-8-12.1(C)(2) (2006). This section requires that PED
"submit annually, on or before November 30, to the secretary of finance and administration the
recommendation of the department for:
(a) amendments to the public school finance formula;
(b) appropriations for the succeeding fiscal year to the public school fund for inclusion in
the executive budget document; and
(c) appropriations for the succeeding fiscal year for pupil transportation and instructional
materials."
Id.
The departmental recommendations are based on estimates by local school boards and governing
bodies of charter schools regarding the number of students to be enrolled in the basic public school
program, the full-time equivalent number of students to be enrolled in early childhood programs,
and the number of students to be enrolled in special education programs for the following school
year. See § 22-8-12.1(C)(2); NMSA 1978, § 22-8-23 (2019). Because these estimates are not due
to PED from the districts until October 15 of each year, the November 30 deadline for this budget
request is intended to allow time for the PED to make the required analysis and calculations. See
§ 22-8-12.1(C)(2).
This Opinion concerns what is arguably a third category of budget request: those submitted for
special "below the line" agency appropriations. From our understanding such requests typically
include funding for department initiatives or pilot programs such as teacher professional
development programs, school leadership training, advanced placement test waivers, and pregnant
teen student support. See 2024 N.M. Laws, ch 69, § 4. These programs are itemized as separate
appropriations housed under PED's operating budget in the General Appropriations Act. Id. They
are eligible programs under the program inventory for evaluation and performance measurement.
NMSA 1978, § 6-3A-7 (2019). And they are programs administered by PED; they are not included
in annual distributions to local school districts and charter schools. See id.
It is the understanding of this Office that PED has historically submitted to LFC and DFA its
request for agency appropriation by September 1, like all state agencies. However, PED has not
historically included its special appropriations request in its September 1 submission. Instead, PED
has separately submitted its requests for special appropriations by November 30, along with its
Section 22-8-12.1(C)(2) recommendations due the same day.
We analyze below whether PED's requests for special appropriations submitted after September 1
are timely under New Mexico law, and we conclude that they are not.

Analysis
To determine, as a matter of law, the annual deadline for PED's "below the line" special
appropriations requests, we must construe Sections 6-3A-7(B) and 22-8-12.1(C)(2). In so doing,
we employ the traditional canons of statutory construction also utilized by the New Mexico courts
when resolving statutory questions.
First, "statutory construction analysis begins by examining the words chosen by the Legislature
and the plain meaning of those words." Reule Sun Corp. v. Valles, 2010-NMSC-004, ¶ 15, 147
N.M. 512. Moreover, under the canon of in pari materia:
[w]hen construing statutes related to the same subject matter, the provisions of a
statute must be read together . . . under the presumption that the legislature acted
with full knowledge of relevant statutory and common law. Thus, two statutes
covering the same subject matter should be harmonized and construed together
when possible, in a way that facilitates their operation and the achievement of their
goals.
N.M. Att'y Gen. v. NMPRC, 2011-NMSC-034, ¶ 10, 150 N.M. 174 (citation omitted) (internal
quotation omitted).
Applying these canons of construction, Sections 6-3A-7(B) and 22-8-12.1(C)(2) can be read to
govern separate and distinct categories of budget request. Under this reading, they do not conflict
with each other. The plain language of Section 6-3A-7(B) provides that agencies that operate
performance-based programs are required to submit their budgets for these programs no later than
September 1. There is no exception in this statutory language for PED. Meanwhile, the plain
language of Section 22-8-12.1(C)(2) is limited to amendments to the public school finance
formula, appropriations for the succeeding fiscal year to the public school fund, or appropriations
for pupil transportation and instructional materials.
From our understanding, PED's "below the line" special appropriation requests fund initiatives
administered by PED itself, such as teacher professional development programs, school leadership
training, advanced placement test waivers, and pregnant teen student support. See 2024 N.M.
Laws, ch 69, § 4. These initiatives are generally the "performance-based programs" governed by
Section 6-3A-7(A). And in any event, special appropriations are categorically agency
appropriations, which are governed by Section 6-3-19 or, in the alternative, Section 6-3A-7. They
are not amendments to the public school finance formula, appropriations for the succeeding fiscal
year to the public school fund, or appropriations for pupil transportation and instructional
materials. They are therefore not governed by the plain language of Section 22-8-12.1(C)(2).
We do not read Section 6-3A-7(B) to conflict with Section 22-8-12.1(C)(2). The latter section
does not contain a blanket extension for PED-related budget requests. Rather, the scope of the
provision is limited to amendments to the public school finance formula, appropriations for the
succeeding fiscal year to the public school fund, or appropriations for pupil transportation and
instructional materials. These categories of request are governed by the plain language of Section
22-8-12.1(C)(2). The public school fund is not an agency appropriation budget request. Instead,

the public school fund is calculated using the public school finance formula, which funds the
operation of the school district's teachers, equipment, and transportation. As such, Section 22-8-12.1(C)(2) governs funding allocated to local school districts and charter schools, rather than to
PED itself. PED's "below the line" special appropriation requests, on the other hand, are agency
appropriations for "performance-based programs" and are therefore governed by Section 6-3A-7(B) and are due by September 1.
Conclusion
In sum, it is the opinion of this Office that Sections 6-3A-7(B) and 22-8-12.1(C)(2) are distinct
statutes that govern separate funding categories. Section 6-3A-7(B) provides that agencies that
operate performance-based programs are required to submit their budget requests for these
programs no later than September 1. Section 22-8-12.1(C)(2), on the other hand, is limited to
amendments to the public school finance formula, appropriations for the succeeding fiscal year to
the public school fund, or appropriations for pupil transportation and instructional materials. The
two sections are not in conflict, and nothing in the language of either provision indicates that the
Legislature intended for 22-8-12.1(C)(2) to supersede, qualify, or limit Section 6-3A-7(B). We
therefore conclude that the date required for PED to submit its annual agency request for special
appropriations is September 1, as set forth in Section 6-3A-7(B).
Please note that this opinion is a public document and is not protected by the attorney-client
privilege. It will be published on our website and made available to the general public.

RAÚL TORREZ
ATTORNEY GENERAL