Can New Mexico require county jails to provide medication-assisted treatment for opioid addiction without paying for it?
Plain-English summary
In 2023, the New Mexico Legislature directed the state's Health Care Authority to write rules for medication-assisted treatment (MAT) programs at correctional facilities. The agency adopted 8.325.12 NMAC, which took effect in September 2024 and applies to all adult correctional facilities, including county jails.
A county jail typically holds people awaiting trial or serving short misdemeanor sentences. Running an MAT program means screening every booking for substance use disorder, providing comprehensive evaluations, supplying FDA-approved addiction medications, and continuing treatment for the entire stay. None of that is free.
Attorney General Raúl Torrez's opinion answers two questions:
- Did the Health Care Authority overstep its statutory authority? No. The legislature plainly told the agency to write rules covering correctional facilities, and the statutory definition of "correctional facility" sweeps in county jails.
- Is forcing county jails to do this without paying them an unfunded mandate? Yes. Article X, Section 8 of the New Mexico Constitution says a state rule that requires a county to take on a new activity has no force of law unless the state provides "sufficient new funding." The Legislature stripped the appropriation out of the original bill in 2023, did not appropriate county funds in 2024, and only in 2025 created a discretionary grant program at NMHCA.
The bottom line: the rule survives in concept, but its enforceability against any specific county turns on whether that county is receiving grant funding sufficient to cover the program's actual cost.
What this means for you
If you run a county jail or sit on a county commission
Read this opinion as legal cover for pushing back. The AG has expressly concluded that the state cannot require your jail to operate an MAT program unless your county is receiving enough state money to actually cover it. If the Health Care Authority sends an inspector or a corrective-action letter, your first question should be: "What grant has my county received under HB 2 (2025), Section 5(152), and is it sufficient to cover our MAT costs?" If the answer is "none" or "not enough," the AG's opinion supports a position that the rule is unenforceable as applied to your facility.
This is an AG opinion, not a court ruling. It is persuasive, not binding. Get your county attorney involved before refusing to comply, because a court could disagree on the "sufficient funding" analysis.
If you are a state legislator
The opinion identifies a clean fix. Make sure the 2025 grant program is funded annually at a level that actually covers the cost of running MAT in every county jail in the state, and make sure NMHCA has clear criteria for distributing grants that match counties' actual MAT caseloads. A grant program that sits unused, or that funds only a few counties, leaves the rule in constitutional limbo for everyone else.
If you advocate for incarcerated people with substance use disorder
The opinion does not strike down 8.325.12 NMAC. It says the rule is enforceable wherever the state pays. Your use point is the appropriation. When the state pulled the $10 million out of SB 425 in 2023, it converted a funded mandate into an unfunded one. Pressing the Legislature to restore and grow that appropriation is what will actually expand MAT access in county facilities.
If you provide MAT services or contract with county jails
Your contracts and your funding pipeline now tie back to whether the contracting county is on the grant list. Ask the county to share its NMHCA grant award before you build a service plan around it. If the county is unfunded, expect intermittent demand and political instability around continuation.
If you are a defense or civil rights attorney
This opinion does not create an individual cause of action and does not say a person in jail has a right to MAT. It says the rule mandating MAT is not currently enforceable against unfunded counties. Federal disability and Eighth Amendment claims for medical care in custody continue under their own analyses, untouched by this opinion.
Common questions
Q: What is medication-assisted treatment (MAT)?
A: It is the use of FDA-approved medications, such as methadone or buprenorphine, often combined with counseling, to treat opioid use disorder. The rule (8.325.12 NMAC) requires correctional facilities to screen incoming inmates, evaluate them, supply MAT medications, and continue treatment throughout their stay.
Q: Why does the rule apply to county jails when the legislation talked about "correctional facilities"?
A: NMSA 1978, § 24-1-5.11(E)(1) defines "correctional facility" to include "a prison or other detention facility, whether operated by a government or private contractor, that is used for confinement of adult persons who are charged with or convicted of a violation of a law or an ordinance." County jails fall squarely within that definition. The AG concluded the agency did not exceed its statutory authority.
Q: What is an "unfunded mandate" under New Mexico law?
A: Article X, Section 8 of the New Mexico Constitution provides that a state rule "mandating any county or city to engage in any new activity, to provide any new service or to increase any current level of activity ... shall not have the force of law" unless the state provides sufficient new funding. The provision was added precisely to prevent state agencies from imposing programs on counties that the counties cannot afford.
Q: Does the 2025 grant program fix the problem?
A: Only partially. House Bill 2 (2025), Section 5(152) appropriated $10 million to NMHCA for grants to counties, municipalities, tribes, and behavioral health providers for MAT and other behavioral health services in fiscal years 2026 through 2029. The AG concluded that for counties that actually receive grants sufficient to cover their MAT costs, the rule becomes enforceable. For counties that do not receive grants, or do not receive enough, the rule remains an unfunded mandate.
Q: Could the state sue a county for not implementing MAT?
A: Based on this opinion, the state's use is limited where funding is absent. The AG's analysis is that the rule "shall not have the force of law" against an unfunded county under Article X, Section 8. A court would have the final say.
Q: Does this opinion affect state-run prisons?
A: No. The unfunded-mandate clause protects counties and cities, not state agencies. State-run correctional facilities under the Corrections Department have to comply with the rule and have received their own appropriations.
Q: Is this opinion binding on courts?
A: No. AG opinions in New Mexico are persuasive authority. A district court reviewing an enforcement action could agree or disagree with the AG's reasoning. But the AG's analysis here is straightforward constitutional text combined with a clear legislative record showing the appropriation was removed before SB 425 passed.
Background and statutory framework
Senate Bill 425 (2023) directed the Health Care Authority (then the Department of Human Services) to promulgate rules for MAT programs in correctional facilities, in consultation with the Corrections Department, county corrections administrators, and treatment providers with corrections experience. As introduced, SB 425 included a $10 million appropriation tied directly to county MAT programs. On March 3, 2023, the Senate Finance Committee adopted a substitute that removed the references to counties and the appropriation. The final enacted bill carried no appropriation for county-level MAT.
The 2023 general appropriations act (HB 2) appropriated MAT funds only to the Department of Health and the Corrections Department, not to counties. The 2024 HB 2 followed the same pattern. In the 2025 HB 2, Section 5(152), the Legislature for the first time appropriated $10 million to NMHCA for grants to counties, tribes, and providers for MAT and other behavioral health services in fiscal years 2026 through 2029.
Article X, Section 8 of the New Mexico Constitution requires the state to fund any new activity it imposes on counties or cities. The AG's analysis applies that text directly: a rule with no money behind it has no force of law as to the entity it burdens. Where money flows, the rule binds.
The opinion also invokes severability under NMSA 1978, § 12-2A-9. The unconstitutional application (against unfunded counties) does not invalidate the rule as a whole. The rule survives, but its application turns on county-by-county funding status.
Citations and references
Statutes:
- NMSA 1978, § 24-1-5.11 (MAT programs in correctional facilities)
- NMSA 1978, § 8-5-2(D) (AG opinion authority)
- NMSA 1978, § 12-2A-9 (severability)
- NMSA 1978, § 6-10-1 (fiscal year)
- N.M. Const. art. X, § 8 (unfunded mandate)
Regulations:
- 8.325.12 NMAC (medication-assisted treatment in correctional facilities)
Cases:
- Pirtle v. Legislative Council, 2021-NMSC-026 (statutory construction begins with plain language)
- Southwestern Pub. Serv. Co. v. N.M. Pub. Regul. Comm'n, 2024-NMSC-012 (legislative intent guides construction)
- Baca v. N.M. Dep't of Pub. Safety, 2002-NMSC-017, 132 N.M. 282 (severability of unconstitutional portion)
Legislative materials:
- SB 425 (2023 Regular Session) and Senate Finance Committee Substitute
- HB 2 (2023, 2024, 2025 Regular Sessions)
Source
- Landing page: https://nmdoj.gov/publication/opinion/2025-08-opinion-8-325-12-nmac-as-applied-to-county-correctional-facilities/
- Original PDF: https://nmdoj.gov/wp-content/uploads/AG-Opinion-2025-08.pdf
Original opinion text
May 8, 2025
OPINION
OF
RAÚL TORREZ
Attorney General
Opinion No. 2025-08
To: Dayan Hochman-Vigil, Majority Whip, New Mexico House of Representatives
Re: Attorney General Opinion – 8.325.12 NMAC as applied to county correctional facilities
Questions Presented and Short Answers
- Does 8.325.12 NMAC exceed the statutory authority granted to the New Mexico Health Care Authority by Senate Bill 425 (SB 425) from the 2023 Regular Legislative Session and codified in Section 24-1-5.11 (2023)?
No. As to the subject matter addressed, 8.325.12 NMAC does not exceed the statutory authority granted to the New Mexico Health Care Authority by Section 24-1-5.11.
- Is 8.325.12 NMAC an unfunded mandate that violates Article X, Section 8 of the New Mexico Constitution?
Yes. Unless a county receives sufficient new funding, by grant or direct legislative appropriation, the regulations promulgated in 8.325.12 NMAC constitute an unfunded mandate violating Article X, Section 8 of the New Mexico Constitution.
Introduction
On September 1, 2024, 8.325.12 NMAC issued by the New Mexico Health Care Authority (NMHCA), formerly known as the Department of Human Services, took effect. The Attorney General received a request for an opinion asking whether 8.325.12 NMAC (the Rule), exceeds the statutory authority conferred by Section 24-1-5.11, and whether this rule, as applied to counties, constitutes an unconstitutional unfunded mandate.
As the request pertains to questions of law from a sitting legislator, an Attorney General Opinion is properly entertained. NMSA 1978, Section 8-5-2(D) provides that the "[A]ttorney [G]eneral shall ... give his opinion in writing upon any question of law submitted to him by the Legislature or of any branch thereof, any state official, elective or appointive, or any district attorney on any subject pending before them or under their control with which they have to deal officially or with reference to their duty in office." (emphasis added). Accordingly, we proceed to opine on the questions of law posed.
Analysis
As to the first question, to analyze whether 8.325.12 NMAC exceeds the statutory authority given to the NMHCA, we must first construe the statute and determine the authority granted. We use the same canons of statutory construction utilized by the New Mexico courts. Pirtle v. Legislative Council, 2021-NMSC-026, ¶ 14 (internal citation omitted). "When construing statutes, our guiding principle is to determine and give effect to legislative intent." Southwestern Pub. Serv. Co. v. New Mexico Pub. Regul. Comm'n, 2024-NMSC-012, ¶ 19. Our analysis of the statute begins with "the plain language of the statute and the context in which it was enacted, taking into account its history and background." Pirtle, 2021-NMSC-026, ¶ 14 (internal citation omitted). "We give effect to the statute as written without room for construction unless the language is doubtful, ambiguous, or ... would lead to injustice, absurdity or contradiction, in which case the statute is to be construed according to its obvious spirit or reason." Southwestern Pub. Serv. Co, 2024-NMSC-012, ¶ 19.
We turn to the relevant statutory text at issue. Section 24-1-5.11(B) requires that
[n]o later than December 1, 2023, the human services department [health care authority department] shall promulgate rules for the operation of medication-assisted treatment programs in correctional facilities in consultation with the corrections department, county corrections administrators and providers who specialize in substance use disorder treatment and have experience working in corrections settings.
For purpose of the statute, a "correctional facility" is defined to "mean[] a prison or other detention facility, whether operated by a government or private contractor, that is used for confinement of adult persons who are charged with or convicted of a violation of a law or an ordinance." NMSA 1978, § 24-1-5.11(E)(1). Generally, county detention facilities are used for pre-trial detention or post-conviction confinement for offenses with penalties of less than a year of jail time, such as misdemeanors or ordinance violations. See §§ 33-3-12, 31-19-1, and 31-20-2. By covering facilities used for both adult pre-conviction detention and post-conviction incarceration, the definition of "correctional facility" addresses all manner of adult facilities, including county detention facilities.
Reading Sections 24-1-5.11(B) and 24-1-5.11(E)(1) together, NMHCA was duly authorized to adopt rules "concerning the operation of medication-assisted treatment programs in correctional facilities," including county detention facilities. To wit, NMHCA did not exceed the grant of authority in NMSA 1978, Section 24-1-5.11 in promulgating 8.325.12 NMAC.
Turning to the second question presented, whether 8.325.12 NMAC constitutes an unfunded mandate in violation of Article X, Section 8 of the New Mexico Constitution, our analysis of the provision begins with "the plain language of the [provision] and the context in which it was enacted, taking into account its history and background." Pirtle, 2021-NMSC-026, ¶ 14 (internal citation omitted). In this instance we review the plain language of 8.325.12 NMAC, the plain language and legislative history of Section 24-1-5.11, and the appropriations bills from the 2023, 2024, and 2025 legislative sessions, in light of the restrictions imposed by Article X, Section 8 of the New Mexico Constitution.
The New Mexico Constitution in Article X, Section 8 provides that,
[a] state rule or regulation mandating any county or city to engage in any new activity, to provide any new service or to increase any current level of activity or to provide any service beyond that required by existing law, shall not have the force of law, unless, or until, the state provides sufficient new funding or a means of new funding to the county or city to pay the cost of performing the mandated activity or service for the period of time during which the activity or service is required to be performed.
(emphasis added).
Thus, an unfunded mandate occurs when a rule-making authority requires a county or city to provide new or expanded services without corresponding funding. See N.M. Cons. art. X, § 8.
Here, the NMHCA issued rule 8.325.12 NMAC (the Rule), requiring all correctional facilities to implement medication assisted treatment (MAT) programs including administering substance use disorder (SUD) screening during intake (8.325.12.9(B)(1) NMAC), providing "comprehensive assessment[s] and diagnostic evaluation[s] for SUD" (8.325.12.9(B)(2) NMAC), the "provision of all medications approved by the FDA for the treatment of SUD and withdrawal management" (8.325.12.9(C)(1) NMAC), and ensuring "treatment services, once initiated, are available for the duration of a program participant's period of incarceration (8.325.12.9(G) NMAC). This goes beyond regulating existing MAT programs. It creates a series of new requirements for correctional facilities, including establishing a MAT program where none currently exists. Because the Rule does not provide any exceptions or contingencies for counties, it constitutes a mandate to provide new activities and services.
Having established that the Rule creates a mandate upon counties, the question becomes whether there is corresponding funding from the Legislature. When first introduced on February 2 of the 2023 regular legislative session, Senate Bill 425 (SB 425) initially proposed the establishment of MAT programs at county detention facilities and included a proposed appropriation of $10,000,000 to fund the new MAT programs. https://www.nmlegis.gov/Sessions/23%20Regular/bills/senate/SB0425.pdf. However, on March 3, 2023, the Senate Finance Committee adopted a committee substitute to SB 425 which removed the references to counties as well as the proposed appropriation. https://www.nmlegis.gov/Sessions/23%20Regular/bills/senate/SB0425FCS.pdf. Ultimately, the final bill, as adopted, did not include the appropriation. https://www.nmlegis.gov/Sessions/23%20Regular/final/SB0425.pdf.
Similarly, a review of the State's funding bill for 2023, known as House Bill 2 or HB 2, confirms that no funds were appropriated to counties for MAT programs. The only references to MAT programs in HB 2 are appropriations to the New Mexico Department of Health and the State's Corrections Department, which does not include county detention facilities. https://www.nmlegis.gov/Sessions/23%20Regular/final/HB0002.pdf. Thus, at the time the Rule was adopted it constituted an unconstitutional, unfunded mandate as to counties.
Although no funding was appropriated in 2023, because Article X, Section 8 of the New Mexico Constitution recognizes that the legislature could subsequently "provide[] sufficient new funding or a means of new funding to the county ... to pay the cost of performing the mandated activity or service," we must review whether the legislature subsequently appropriated funds to support counties in implementing the mandated MAT programs. A review of the bills from the 2024 legislative session shows funding for such programs run by the State's Corrections Department, but again, there are no funds appropriated for county-run MAT programs. https://www.nmlegis.gov/Sessions/24%20Regular/final/HB0002.pdf. Accordingly, for fiscal year 2025, the Rule remains an unconstitutional, unfunded mandate to counties.
In the 2025 legislative session, the funding picture changes. For the first time since the adoption of the Rule, the means to new funds for a county to conduct MAT activities and services becomes a possibility. Section 5(152) of the 2025 version of House Bill 2 appropriates $10,000,000 to the NMHCA for the following purpose:
For grants to counties, municipalities, Indian nations, tribes and pueblos and behavioral health providers based on the submitted regional plans for assisted outpatient treatment, medication assisted treatment including for juveniles, assertive community treatment, other best-practice and evidence-informed outpatient and diversion services, promising practices and community-based wraparound services and resources pursuant to the Behavioral Health Reform and Investment Act for expenditure in fiscal years 2026 through 2029. Any unexpended balance remaining at the end of fiscal year 2029 shall revert to the behavioral health trust fund.
https://www.nmlegis.gov/Sessions/25%20Regular/final/HB0002.pdf. (emphasis added).
With that language, rather than making a direct appropriation to counties, the legislature establishes a grant program to be administered by NMHCA to make new funding available to counties for medication assisted treatment beginning in fiscal year 2026, which commences on July 1, 2025. See NMSA 1978, § 6-10-1 (designating July 1st as the beginning of each fiscal year). Even then, the mere establishment of a grant program does not cure the Rule's constitutional infirmity. For a rule's mandate to have effect on a county, Article X, Section 8 requires "the state provide[] sufficient new funding or a means of new funding to the county ... to pay the cost of performing the mandated activity or service." Thinking through the example of the county that does not receive grant funds demonstrates why the Rule's constitutional issue remains unchanged. In the circumstance of the county not receiving grants funds, Article X, Section 8's requirement for sufficient new funding or a means of new funding to pay the costs of the mandated service is unmet. Thus, as to counties not receiving grant funds, the Rule still constitutes an unfunded mandate. For the county receiving grant funds, Article X, Section 8's funding sufficiency requirement comes into play. In the case of a county receiving grant funds, the question becomes whether the grant is sufficient "to pay the cost of performing the mandated activity or service for the period of time during which the activity or service is required to be performed."
At the time of this writing, the mandate to counties in 8.325.12 NMAC is not supported by a corresponding appropriation of funds or means for new funds. As such, the mandate may be characterized as an unfunded mandate in violation of Article X, Section 8 of the New Mexico Constitution.
That being said, when part of a law or regulation is unconstitutional, courts will attempt to sever the unconstitutional part of a statute or regulation to give effect to the valid provision or application. NMSA 1978, § 12-2A-9 (1997).
It is well established in this jurisdiction that a part of a law may be invalid and the remainder valid, where the invalid part may be separated from the other portions, without impairing the force and effect of the remaining parts, and if the legislative purpose as expressed in the valid portion can be given force and effect, without the invalid part, and, when considering the entire act it cannot be said that the legislature would not have passed the remaining part if it had known that the objectionable part was invalid.
Baca v. New Mexico Dept. of Pub. Safety, 2002-NMSC-017, ¶ 8, 132 N.M. 282, 47 P.3d 441 (internal citation omitted).
Therefore, upon the initiation of the grant program in July of 2025, the Rule's enforceability as to counties will be conditioned on whether a county receives a grant sufficient to perform the activities and services the Rule mandates.
Conclusion
As discussed above, NMHCA acted within its statutory authority in promulgating 8.325.12 NMAC on the subject matter of MAT programs. However, unless and until sufficient funding is made available to a county to comply with the mandates of 8.325.12 NMAC, the Rule constitutes an unfunded mandate and is unconstitutional as applied to county correctional facilities.
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