2023 New Mexico Statutes › Chapter 34 - Court Structure and Administration › Article 7 - Probate Courts › Section 34-7-9 - Probate judge disqualification; transfer.

A. Whenever a probate judge shall, for any reason, be interested or disqualified from acting in any proceeding coming within the jurisdiction of the probate court, the judge shall, upon the judge's own motion or that of any interested party, immediately enter an order transferring the proceeding and file the order with the clerk of the probate court.
B. Upon receipt of an order of recusal or disqualification, the clerk of the probate court shall give written notice to the district court of the county in which the probate court is situate, and the district court shall transfer the case to the district court or designate another probate judge to conduct further proceedings. If designating another probate judge, the district court shall give preference to probate judges serving within the same judicial district. Upon receipt by the clerk of the probate court of a district court designation, the clerk of the probate court shall send a copy of the designation to the parties or their counsel, to the designated district or probate judge and to the recused or disqualified judge.
C. A probate judge who has accepted a designation by the district court has jurisdiction to sit in any action arising in any other probate district when designated for a specific case or for a specific period of time. A probate judge acting in another probate district by designation shall include the cases heard by designation in the probate judge's own reports to the district court, indicating on the reports that the probate court's jurisdiction is by designation.
D. The board of county commissioners of the county of the recused or disqualified probate judge shall reimburse the district judge or probate judge sitting by designation for expenses incurred pursuant to the Per Diem and Mileage Act [10-8-1 to 10-8-8 NMSA 1978].
History:
Laws 1889, ch. 132, § 1; C.L. 1897, § 751; Code 1915, § 1433; C.S. 1929, § 34-414; Laws 1933, ch. 102, § 1; 1941 Comp., § 16-412; 1953 Comp., § 16-4-12; 1978 Comp., § 34-7-9; 2023, ch. 44, § 7.
ANNOTATIONS
Cross references.
— For disqualification of judges,
see
N.M. Const., art. VI, § 18.
For performance of acts and orders when probate judge is unable to act,
see
45-1-307 NMSA 1978.
The 2023 amendment,
effective July 1, 2023, provided procedures for designating a district judge or other probate judge when a probate judge has recused or been disqualified; added the section heading "Probate judge disqualification; transfer"; in Subsection A, after "transferring the proceeding", deleted "to the district court having jurisdiction in that county and directing the probate clerk to deposit forthwith within the office of the clerk of said district court a certified copy of said order together with all original papers and records or certified copies of all original papers and records in the probate court relating to said proceeding" and added "and file the order with the clerk of the probate court."; and added Subsections B through D.
More than belief of partiality required.
— In light of the provisions of this section, which requires an actual interest or disqualification, 38-3-9 NMSA 1978, which requires only a belief of partiality, does not apply to probate judges.
In re Estate of Tarlton
, 1972-NMSC-060, 84 N.M. 95, 500 P.2d 180.
Disqualification not automatic on filing motions.
— This section is merely a statutory declaration of N.M. Const., art. VI, § 18, which prohibits any judge from sitting in any cause in which the judge has an interest except by consent of the parties. A creditor's motion cannot act to automatically transfer the cause; it is necessary for the creditor to direct the court's attention to the grounds for disqualification.
In re Estate of Tarlton
, 1972-NMSC-060, 84 N.M. 95, 500 P.2d 180.