Does the New Mexico Military Institute get a share of the extra 1.25% annual distribution from the state's land grant permanent funds that voters approved in 2022, including the 60% piece earmarked for early childhood education?

Plain-English summary

In 2022, New Mexico voters approved an amendment that takes an additional 1.25% per year out of the permanent school fund and splits it into two pieces: 40% for K-12 (instruction for at-risk students, longer school year, teacher pay) and 60% for early childhood education. New Mexico Military Institute asked whether it gets a share of either piece.

The Attorney General said no to both. The amendment expressly draws the additional distribution from the permanent school fund. Under Section 6 of the federal Enabling Act (which made New Mexico a state and granted lands in trust to fund specific institutions), the permanent school fund is reserved for the support of "common schools," now called public schools. NMMI is a beneficiary of separate land grant permanent funds carved out for military institutes under Section 7 of the Enabling Act, but it is not a common or public school. So NMMI receives its share of the original 5% distribution under Article XII, Section 7(F), but is excluded from the additional 1.25% distribution.

The opinion also rejects an end-run: NMMI cannot claim a share of the 60% early-childhood portion by adding early-childhood services. The funds come from the permanent school fund, NMMI is not a permanent-school-fund beneficiary, and providing early-childhood services does not change that source-of-funds limitation.

What this means for you

If you are at the New Mexico Military Institute or its Board of Regents

You continue to receive your proportionate share of the original 5% land-grant-permanent-fund distribution under Article XII, Section 7(F). You do not receive any portion of the additional 1.25% distribution under Subsection (G), and you cannot capture the 60% early-childhood portion by offering early childhood programs.

If NMMI wants to participate in early-childhood funding, the path is general state appropriations or grants, not the permanent-school-fund distribution.

If you are at the State Investment Council or Land Office

The 1.25% distribution flows only to public-school-fund beneficiaries. Confirm your distribution model excludes the other land-grant-permanent-fund beneficiaries (NMMI, the universities, the penitentiary, etc.) from the additional distribution while continuing to include them in the Section 7(F) distribution. The opinion supports that bifurcation.

If you are at a public school district or charter school

The additional 1.25% distribution is yours (40% portion) for enhanced instruction for at-risk students, school-year extension, and teacher compensation. Coordinate with PED on the program-design requirements that flow with that money.

If you operate or fund early childhood education in New Mexico

The 60% portion of the additional 1.25% distribution is dedicated to early childhood education for children up to kindergarten age. The Constitution defines that as "nonsectarian and nondenominational education." Distribution is "as provided by law," so the legislature controls how the money is allocated among programs.

If you are a state legislator

The opinion confirms that NMMI and other non-public-school land-grant beneficiaries cannot dip into the 1.25% distribution. Any policy goal of channeling those funds to NMMI for any purpose would require either a constitutional amendment or a separate appropriation from non-permanent-school-fund sources.

If you are a constitutional or trust law attorney

The opinion is grounded in the Enabling Act's trust limitations and the source-of-funds rule. Section 6 dedicates the permanent school fund to common schools; Section 7 separately funds military institutes. The 2022 amendment expanded distributions from the permanent school fund, which by definition cannot reach Section 7 beneficiaries. The opinion supersedes earlier Opinion 2024-03 on the same question; the conclusion is unchanged but the analysis is updated.

Common questions

Q: What does NMMI still get?
A: Its proportionate share of the original 5% annual distribution from the land grant permanent funds under Article XII, Section 7(F), funded by the NMMI permanent fund (NMSA 1978, § 19-1-17(B)(19)).

Q: Why doesn't NMMI count as a school for this purpose?
A: The Enabling Act distinguishes "common schools" (now called public schools, the K-12 system) from other land-grant beneficiaries like military institutes, universities, and the penitentiary. NMMI is in the second group. The permanent school fund is reserved for common schools.

Q: Can NMMI offer early childhood services to qualify for the 60% portion? A: No. The 60% portion still comes from the permanent school fund, which excludes NMMI regardless of what services NMMI provides. The source-of-funds rule controls.

Q: Did Congress have to approve the early childhood expansion? A: Yes. The Enabling Act required Congressional consent for any state-side expansion of permanent school fund use. Congress approved the change via Public Law 117-328 in December 2022.

Q: Does this affect the universities or penitentiary?
A: The opinion focuses on NMMI but the same source-of-funds reasoning would apply to other Section 7 land-grant beneficiaries. They share in the original 5% distribution but not the additional 1.25%.

Q: Why did the AG issue a revised opinion?
A: AGO 2024-03 reached the same conclusions but was based on incomplete information. The revised opinion (2025-02) updates the analysis after additional research, including the Congressional consent and the Joint Resolution background. The bottom line did not change.

Background and statutory framework

When New Mexico became a state in 1912, the federal Enabling Act granted lands in trust to support specific institutions. Section 6 dedicated certain lands to support of the "common schools" (the K-12 public system). Section 7 separately granted lands for military institutes (NMMI), universities, the penitentiary, and other beneficiaries. The proceeds of those land grants form the various land grant permanent funds.

Article XII, Section 7 of the New Mexico Constitution governs distributions from these funds. Subsection (F) authorizes a 5% annual distribution from "the land grant permanent funds" to all beneficiaries identified in the Ferguson Act and the Enabling Act, with each beneficiary receiving a proportionate share.

In 2022, voters approved an amendment adding Subsections (G) and (H), which authorize an additional 1.25% annual distribution from "the permanent school fund" (defined in Article XII, Section 2 as the common-school land-grant fund). Subsection (H) splits the additional distribution: 40% for at-risk-student instruction, school-year extension, and public-school teacher compensation; 60% for early childhood education (defined in Subsection (I) as nonsectarian, nondenominational education for children up through pre-kindergarten age).

Because the additional 1.25% comes only from the permanent school fund, only beneficiaries of that fund (the public schools) are eligible. The opinion applies plain-language constitutional construction (State v. Ameer; State v. Gutierrez) and rejects readings that would render the source-of-funds language superfluous (State v. Sinyard).

The opinion also confirms Congressional consent under Public Law 117-328 to the use of permanent school fund money for early childhood education. Without that consent, the 60% Subsection (H)(2) distribution would not have been enforceable under the Enabling Act's trust limitations.

Citations and references

Federal:

• Enabling Act, Act of June 20, 1910, 36 Stat. 557, ch. 310, §§ 6, 7
• Public Law 117-328 (Congressional consent)

State Constitution:

• N.M. Const. art. XII, §§ 2, 7

Statutes:

• NMSA 1978, § 19-1-17(B)(19)

Cases:

• State v. Ameer, 2018-NMSC-030, 458 P.3d 390
• State v. Gutierrez, 2023-NMSC-002, 523 P.3d 560
• Moses v. Ruszkowski, 2019-NMSC-003, 458 P.3d 406
• State v. Sinyard, 1983-NMCA-150, 100 N.M. 694

Prior AG opinion:

• N.M. Att'y Gen. Op. 2024-03 (Feb. 5, 2024) (withdrawn and replaced by this opinion)

Source

• Landing page: https://nmdoj.gov/publication/opinion/2025-02-opinion-distributions-from-land-grant-permanent-funds-under-2022-amendment-to-article-xii-section-7-of-the-new-mexico-constitution/
• Original PDF: https://nmdoj.gov/wp-content/uploads/Attorney-General-Opinion-2025-02.pdf

Original opinion text

January 16, 2025
OPINION
OF
RAÚL TORREZ
Attorney General

Opinion No. 2025-02

To:

The Honorable Harold Alan Edmonson, Jr., President, New Mexico Military Institute Board of Regents

Re:

REVISED Attorney General Opinion – Distributions from Land Grant Permanent Funds under 2022 Amendment to Article XII, Section 7 of the New Mexico Constitution

Questions
1.
Is NMMI entitled to receive a proportionate share of the additional 1.25% annual distribution authorized by the 2022 amendment? 2. If not, is NMMI entitled to receive a proportionate share of the 60% portion of the additional 1.25% annual distribution if NMMI provides for early childhood education? Answers 1. No. The additional 1.25% annual distribution authorized by the 2022 amendment is made from the permanent school fund, which contains trust lands granted under the Enabling Act and is dedicated to the support of public schools. Because NMMI is not a public or common school for purposes of the Enabling Act, NMMI is not a beneficiary of the permanent school fund and is not entitled to a share of the additional 1.25% annual distribution. 2. No. The same reasoning applies as above. Because NMMI is not a public or common school for purposes of the Enabling Act, NMMI is not an intended beneficiary of the permanent school fund described in Article XII, Section 2 and is therefore not entitled to a share of the additional 1.25% annual distribution, for any purpose set forth in the 2022 amendment, including the provision of early childhood education services. Background Article XII, Section 7(A) of the New Mexico Constitution provides for the investment of "land grant permanent funds," which are defined as the permanent school fund described in Article 12, Section 2 of this constitution and all other permanent funds derived from lands granted or confirmed to the state by the act of congress of June 20, 1910, entitled "An act to enable the people New Mexico to form a constitution and state government and be admitted into the union on an equal footing with the original states." The federal act referred to in Article XII, Section 7(A) is the Enabling Act, under which the United States Congress, as part of the terms for the admission of New Mexico as a state, made grants of public land subject to certain terms. See Act of June 20, 1910, 36 Stat. 557, ch. 310 (Enabling Act). Section 10 of the Enabling Act requires that the lands be held by the state in trust, to be disposed of . . . only in [the] manner as herein provided and for the several objects specified in the respective granting and confirmatory provisions, and that the natural products and money proceeds of any of said lands shall be subject to the same trusts as the lands producing the same. The trust funds from the land grants must be "prudently invested," and "[d]istributions from the trust funds shall be made as provided in Article 12, Section 7" of the New Mexico Constitution. Id. Article XII, Section 7 provides for two distributions from the land grant permanent funds. The first states: F.

The annual distributions from the land grant permanent funds to the beneficiaries specified in the Ferguson Act and the Enabling Act shall be five percent of the average of the year-end market values of the land grant permanent funds for the immediately preceding five calendar years.

The second distribution was added by the 2022 amendment and provides, in pertinent part: G.

In addition to the annual distributions made pursuant to Subsection F of this section, . . . an annual distribution of one and one-fourth percent of the average of the year-end market value of the permanent school fund for the immediately preceding five calendar years shall be made as provided in Subsection H of this section; . . . .

H.

Unless suspended . . ., the additional distribution from the permanent school fund provided for in Subsection G of this section shall be as follows and as provided by law: (1) forty percent of the additional distribution shall be for the public school permanent fund beneficiary for enhanced instruction for students at risk of failure, extending the school year and public school teacher compensation; and (2) sixty percent of the additional distribution shall be for the provision of early childhood education.

I.

As used in this section, "early childhood education" means nonsectarian and nondenominational education for children until they are eligible for kindergarten.

N.M. Const. art. XII, § 7(G)-(I) (emphases added).
The distribution described in Article XII, Section 7(H)(1) above went into effect upon approval by New Mexico voters. Article XII, Section 7(H)(2), however, provides for a new use of the permanent school fund, which, as discussed below, the Enabling Act currently limits to support of the public schools. See Enabling Act, § 6. Section 3 of the Joint Resolution recognizes that Congressional approval is necessary for any amendment to the state constitution that would change the terms of the Enabling Act. See Enabling Act, § 2; N.M. Const. art. XIX, § 4; N.M. Const. art. XXI, § 10. On December 29, 2022, Congress passed Public Law 117-328 and consented to amendment of the Enabling Act of the New Mexico Constitution. See https://www.congress.gov/117/plaws/publ328/PLAW-117publ328.pdf. As such, the distribution for early childhood education in Article XII, Section 7(H)(2) went into effect on that date. Analysis A. NMMI is not entitled to a share of the additional 1.25% annual distribution from the permanent school fund provided in Article XII, Section 7(G). NMMI is a beneficiary of the land grant permanent funds, see Enabling Act, § 7 (grant of land for "military institutes"), and receives a proportionate share of the annual distribution from the funds authorized under Article XII, Section 7(F). See NMSA 1978, § 19-1-17(B)(19) (2005) (including the "New Mexico military institute permanent fund" in the list of funds credited with a proportionate share of money derived from state lands). However, NMMI is not a common school within the meaning of Section 6 of the Enabling Act. NMMI's entitlement to a share of the additional 1.25% distribution provided in Article XII, Section 7(G) depends on whether (1) the drafters of the 2022 amendment intended to include NMMI as a recipient and (2) the Enabling Act permits such a distribution.

1.

The Intent of the Drafters of the 2022 Amendment

We first address the intent of the drafters of the 2022 amendment. The same rules used to determine the legislative intent underlying a statute apply to interpreting provisions of the state constitution. See State ex rel. Richardson v. Fifth Jud. Dist. Nominating Comm'n, 2007-NMSC-023, ¶ 17, 160 P.3d 566 (stating that the rules of statutory construction "apply equally to constitutional construction"). The principal goal of constitutional construction is to give effect to the intent of the provision's drafters and "the voters of New Mexico who approved it," State v. Ameer, 2018-NMSC-030, ¶ 9, 458 P.3d 390, "using the plain language of the [provision] as the primary indicator of legislative intent," State v. Gutierrez, 2023-NMSC-002, ¶ 22, 523 P.3d 560; see Starko, Inc. v. Cimarron Health Plan, Inc., 2005-NMCA-040, ¶ 12, 110 P.3d 526 (stating that effect must be given, "when possible . . . to the clear and unambiguous language of the constitutional provision"). In determining legislative intent, "contemporaneous documents, presented to and presumably considered by the [L]egislature during the course of enact[ing] a statute may . . . be considered." State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 35, 117 N.M. 346. Article XII, Section 7(G) provides for an additional annual distribution of 1.25% "of the average of the year-end market value of the permanent school fund for the immediately preceding five calendar years" (emphasis added), which is in contrast with Article XII, Section 7(F)'s distribution from "the land grand permanent funds." Under Article XII, Section 7(A), the "permanent school fund" means "the permanent school fund described in Article 12, Section 2 of [the New Mexico] constitution." Turning then to Article XII, Section 2, the permanent school fund consists of the proceeds of lands granted under the Enabling Act "for the support of common schools," Enabling Act, § 6; see id. § 7 (providing that distributions from "the permanent school fund . . . shall be used for the maintenance of the common schools"), which are now referred to as public schools, see Moses v. Ruszkowski, 2019-NMSC-003, ¶ 12, 458 P.3d 406 ("During the early nineteenth century, public education was provided in public schools known as common schools."). The proceeds of land grants covered by the Enabling Act may be used only for the purposes specified in the Act. In other words, the additional 1.25% distribution provided for in Article XII, Section 7(G) is made from the permanent school fund and must, therefore, be limited to the support of public schools. Although Article XII, Section 7(H) does not repeat at every opportunity that the additional distribution is so limited, it does expressly state that "the additional distribution from the permanent school fund provided for in Subsection G shall be as follows and as provided by law." (Emphases added.) The additional 1.25% distribution is then divided into "forty percent . . . for enhanced instruction for students at risk of failure, extending the school year and public school teacher compensation," and "sixty percent . . . for the provision of early childhood education." N.M. Const. art. XII, § 7(H)(1), (2). Indeed, the purpose of Article XII, Section 7(H) is simply to provide further detail regarding the additional distribution identified in Article XII, Section 7(G). Any reading that expands the Article XII, Section 7(H) distribution beyond the permanent school fund would render the language in Article XII, Sections 7(G) and (H) superfluous and internally inconsistent, which reading we are to avoid. See State v. Sinyard, 1983-NMCA-150, ¶ 6, 100 N.M. 694 (stating that a "well-established principle of statutory construction is" to read the statute "as a whole," to construe each section or part "in connection with every other part or section so as to produce a harmonious whole," and to "give effect to all provisions of a statute and to reconcile different provisions so as to make them consistent"). Because NMMI is not a public school or otherwise a beneficiary of the permanent school fund, it is not included among the intended recipients of the additional distribution. As such, based on the language of Article XII, Section 7, NMMI is not an intended beneficiary of the additional 1.25% distribution.

2. Authorization Under the Enabling Act
   Turning then to the question of whether the Enabling Act authorizes the allocation to NMMI of a share of the additional 1.25% distribution provided in Article XII, Section 7(G), we are further assured that NMMI is not an intended recipient of a portion of the additional distribution. As indicated above, the Enabling Act currently limits the use of the permanent school fund to the support of the common schools. Enabling Act, §§ 6-7. Article XII, Section 7(G), (H) expressly establishes an additional distribution from the permanent school fund. See N.M. Const. art. XII,
   § 7(G) (identifying an additional distribution from "the permanent school fund . . . as provided in Subsection H"); § 7(H) (setting forth how "the additional distribution from the permanent school fund" shall be made); § 7(H)(1) (providing that 40% percent of the additional distribution "shall be for the public school permanent fund beneficiary for enhanced instruction for students at risk of failure, extending the school year and public school teacher compensation"). Thus, because the constitutional amendment establishes an additional distribution from the permanent school fund, because the Enabling Act limits use of the permanent school fund for the common or public schools, and because NMMI is not a common or public school as that term is used in the Enabling Act, we conclude that the Enabling Act does not permit a portion of the additional distribution to be made to NMMI. See also Fiscal Impact Report (FIR) H.J.R. 1, p. 2, 55th Leg., 1st Sess. (N.M. 2021) (available at nmlegis.gov) (explaining that because the amendment allows "the additional distribution to come only from the permanent school fund," land grant permanent fund beneficiaries other than the public schools "will not receive increased distributions"). B. NMMI is also not entitled to the distribution for early childhood education provided in Article XII, Section 7(H)(2). The above reasoning also applies to the question of whether NMMI is entitled to receive a share of the 60% portion of the additional 1.25% annual distribution if NMMI provides for early childhood education. It is consistent throughout Article XII that public schools are the intended recipients of land grant permanent funds. The same is true for Article XII, Section 7(H)(2). There is no additional language that modifies the intended beneficiaries of the funds. Article XII, Section 7(H)(2) does not otherwise indicate that the 60% portion of the additional 1.25% annual distribution is intended to benefit an institution not otherwise designated to receive funds from the school permanent fund within the contemplation of Article XII or the 2022 amendment.

Moreover, it would not follow basic canons of constitutional construction to conclude that NMII is not entitled to a portion of the additional 1.25% distribution because NMMI is not designated to receive funds from the school permanent fund, but that NMMI would somehow be entitled to a share of the 60% portion of the additional distribution simply by providing early childhood education services. See Ameer, 2018-NMSC-030, ¶ 9 (stating that the principal goal of constitutional construction is to give effect to the intent of the drafters and the "voters of New Mexico who approved it"); Gutierrez, 2023-NMSC-002, ¶ 22 (stating that plain language is the primary indicator of intent); Starko, Inc., 2005-NMCA-040, ¶ 12 (stating that we must consider the "clear and unambiguous language of the constitutional provision[s]"). Accordingly, we conclude that NMMI is not authorized to receive a share of the 60% portion of the additional 1.25% annual distribution, regardless of whether NMMI offers early childhood education services, because NMMI is not an intended recipient of the permanent school fund described in Article XII, Section 2. Conclusion The additional 1.25% annual distribution authorized by the 2022 amendment is made from the permanent school fund, which contains trust lands granted under the Enabling Act and is dedicated to the support of public schools. Because NMMI is not a public or common school for purposes of the Enabling Act, NMMI is not a beneficiary of the permanent school fund and is not entitled to a share of the additional 1.25% annual distribution for public schools under Subsection H(1) or for early childhood education under Subsection H(2). 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

/s/ Aletheia V.P. Allen
Aletheia V.P. Allen
Solicitor General