New Mexico Subpoena
New Mexico pays a witness the non-salaried public officer per diem, $95.00 at four hours or more and $45.00 below it, and the amount may not be prorated. Form 4-505 NMRA applies. Attorney review available.
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Introduction
New Mexico does not pay witnesses a witness fee. It pays them a per diem, and that single design choice drives almost everything on this page. Rule 1-045(B)(2)(b) NMRA tells the serving party to tender the full fee for one day's expenses provided by Section 10-8-4(A) NMSA 1978 as per diem for nonsalaried public officers attending a board or committee meeting, which the Department of Finance and Administration rule fixes at $95.00 where the person is physically present four hours or more during a single calendar day, and $45.00 where attendance runs under four hours or happens virtually for any length of time. The rule then adds the line that trips people up: the fee for per diem expenses shall not be prorated. A twenty-minute appearance does not buy a twenty-minute rate. Mileage is a formula rather than a figure. Rule 1-045 adopts Section 10-8-4(D), and 2.42.2.11(B)(1) NMAC sets that at one hundred percent of the internal revenue service standard mileage rate set January 1 of the previous year, so the number moves each January and has to be looked up for the controlling year. The stakes for getting the tender right rose when the rule was revised. The committee commentary printed with Rule 1-045 records that the old provision excusing a failure to tender was deleted, and that the committee intends that henceforth the failure to tender required expense and mileage fees shall invalidate the subpoena and justify non-compliance with its command. New Mexico also prescribes the paper: Rule 1-045(A)(1)(d) requires every subpoena to be substantially in the form approved by the Supreme Court, which is Form 4-505 NMRA. DocDraft drafts your New Mexico subpoena from your own case facts, with attorney review available before service.
Key Things to Know
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A New Mexico subpoena is a command issued in a district court case that orders a person to attend and give testimony, or to produce and permit inspection of designated documents, electronically stored information or tangible things, or to permit inspection of premises.
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New Mexico pays a per diem instead of a flat witness fee. Rule 1-045(B)(2)(b) NMRA directs the serving party to tender the full fee for one day's expenses set by Section 10-8-4(A) NMSA 1978 as per diem for nonsalaried public officers attending a board or committee meeting.
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Those amounts are $95.00 where the person is physically present for four hours or more during a single calendar day, and $45.00 where the person attends for less than four hours or attends virtually for any duration (2.42.2.8(C)(1)(a) NMAC).
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The per diem cannot be shrunk to fit a short appearance. Rule 1-045 states that the fee for per diem expenses shall not be prorated, and that a full day's expenses must be paid before each additional day of required attendance.
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New Mexico mileage is an indexed formula, not a statutory cents figure: one hundred percent of the internal revenue service standard mileage rate set January 1 of the previous year for each mile traveled in a privately owned vehicle (2.42.2.11(B)(1) NMAC).
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Skipping the tender now voids the command. The committee commentary to Rule 1-045 NMRA states that the failure to tender required expense and mileage fees shall invalidate the subpoena and justify non-compliance. The exception is a subpoena issued on behalf of the state or a state officer or agency, where fees and mileage need not be tendered.
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A New Mexico deposition may be commanded only within one hundred miles of where the person resides, is employed or transacts business in person, or at another place fixed by court order, while a hearing or trial may be commanded at any place within the state (Rule 1-045(B)(3) and (B)(4) NMRA).
Key decisions before you file
Before you file a Subpoena in New Mexico, a few decisions shape the document: which option to choose and what each one means. The Subpoena guide walks through them.
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New Mexico Requirements for Subpoena
Per Diem of $95.00 or $45.00, Not a Witness Fee
Rule 1-045(B)(2)(b) NMRA requires tender of the full fee for one day's expenses set by Section 10-8-4(A) NMSA 1978 as per diem for nonsalaried public officers attending a board or committee meeting. 2.42.2.8(C)(1)(a) NMAC sets that at $95.00 for physical attendance of four hours or more in a single calendar day, and $45.00 for attendance under four hours or a virtual appearance of any duration.
The Per Diem May Not Be Prorated
Rule 1-045 NMRA states that the fee for per diem expenses shall not be prorated, and that where attendance is required for more than one day a full day's expenses shall be paid before the start of each additional day. A short appearance does not reduce the applicable tier.
Mileage at the Prior-Year IRS Rate
New Mexico publishes a formula rather than a cents figure. 2.42.2.11(B)(1) NMAC sets mileage at one hundred percent of the internal revenue service standard mileage rate set January 1 of the previous year for each mile traveled in a privately owned vehicle, and Supreme Court Order No. S-1-AO-2025-00002 applies the same measure in the judicial branch. Look up the controlling year.
Failure to Tender Invalidates the Subpoena
The committee commentary printed with Rule 1-045 NMRA records that the old provision excusing a failure to tender was deleted, and that the committee intends the failure to tender required expense and mileage fees to invalidate the subpoena and justify non-compliance with its command.
Clerk Issues It Blank, or a New Mexico Attorney Signs
Under Rule 1-045(A)(3) NMRA the clerk issues a subpoena signed but otherwise in blank to the requesting party, who completes it before service, and an attorney authorized to practice law in New Mexico who represents a party may also issue and sign one on behalf of the court. All subpoenas issue from the court for the district where the matter is pending.
Supreme Court Approved Form 4-505 NMRA
Rule 1-045(A)(1)(d) NMRA requires every subpoena to be substantially in the form approved by the Supreme Court. That form is 4-505 NMRA, Subpoena, approved November 1, 2020 under RCR No. 274, with check boxes for a deposition or trial appearance and a signature line reading judge, clerk, or attorney.
Notice to Each Party Before a Records Subpoena
Rule 1-045(B)(2) NMRA requires that prior to or at the same time as service of any subpoena commanding production of documents and things or inspection of premises before trial, notice be served on each party in the manner prescribed by Rule 1-005 NMRA. The rule fixes a sequence, not a number of days.
Hundred-Mile Deposition Limit, Statewide Trial Reach
Rule 1-045(B)(3) NMRA allows a deposition to be commanded only within one hundred miles of where the person resides, is employed or transacts business in person, or at another place fixed by court order. Rule 1-045(B)(4) allows a hearing or trial anywhere in the state. This hundred-mile limit comes from New Mexico procedure, not from the Federal Rules.