2018 New Mexico Statutes
Chapter 4 - Counties
Article 41 - County Sheriff
Section 4-41-9 - Powers of deputy sheriff.

Deputies are authorized to discharge all the duties that belong to the office of sheriff that may be placed under their charge by their principals, with the same effect as though they were executed by the respective sheriffs. If there is a vacancy in the office of sheriff, the highest-ranking deputy sheriff or under-sheriff, who is qualified to hold the office of sheriff, shall exercise the powers of sheriff until a sheriff is appointed and qualified.

History: Laws 1855-1856, ch. 2, § 3; C.L. 1865, ch. 99, § 11; C.L. 1884, § 403; C.L. 1897, § 740; Code 1915, § 1259; C.S. 1929, § 33-4415; 1941 Comp., § 15-3811; 1953 Comp., § 15-40-11; 1978 Comp., § 4-41-9, 2017, ch. 56, § 1.

The 2017 amendment, effective April 6, 2017, authorized a deputy sheriff or under-sheriff to exercise the powers of sheriff while there is a vacancy in the office of sheriff; added the catchline "Powers of deputy sheriff"; in the first sentence, deleted "The said"; and, added the last sentence.

A "special deputy" does not necessarily lack the authority to serve a writ of execution or make levy pursuant to writ. Novak v. Dow, 1970-NMCA-104, 82 N.M. 30, 474 P.2d 712.

Use of force in making arrest. — Large rocks, hurled by misdemeanant at deputy sheriff in resisting arrest, were dangerous weapons, justifying resort to extreme measures on part of deputy. State v. Vargas, 1937-NMSC-049,42 N.M. 1, 74 P.2d 62, distinguished in State v. Gabaldon, 1939-NMSC-060, 43 N.M. 525, 96 P.2d 293.

Jury instruction as to status of deputy sheriff. — In murder prosecution in which there was a question as to whether the defendant was a deputy sheriff acting to perfect or enforce an arrest when the killing occurred, instructions leaving question whether defendant was a deputy sheriff to the jury were proper where there was no direct evidence that such was the case. Territory v. Kimmick, 1910-NMSC-058, 15 N.M. 178, 106 P. 381.

County sheriff was not liable in damage suit for false return of service by deputy sheriff, either on the theory that deputy acted by virtue of the deputy's office, since plaintiffs had the burden of proving that service of civil process was within the authority of deputy, and they had failed to find any evidence that would meet that burden, or on the theory that deputy acted under color of the deputy's office, since representations which led plaintiffs to believe that they were dealing with sheriff's office did not occur during defendant-sheriff's term of office. Karr v. Dow, 1973-NMCA-016, 84 N.M. 708, 507 P.2d 455, cert. denied, 84 N.M. 696, 507 P.2d 443.

Deputy sheriffs may not exercise any power other than those delegated by the sheriff, and, therefore, the deputy sheriff does not exercise his powers and duties independently of a superior power, nor is he subject only to the general control of a power placed over him by the legislature. The detailed supervision and control exercised over deputy sheriffs by their sheriffs eliminate the office of deputy sheriff from the category of a public office and place it in the category of public employment. 1959-60 Op. Att'y Gen. No. 60-222.

Duties of public weighmasters. — Deputy sheriffs, in their official capacity, are required to perform the duties of public weighmasters when so designated by the sheriffs, and are not to receive for their own use any fees or other extra compensation for their services. 1931-32 Op. Att'y Gen. 31-183.

Disposition of fees recovered by deputies in connection with performance of duties. — Deputy sheriffs are entitled to no other compensation for the performance of their duties, which includes the service of civil and criminal papers as authorized by statute, than their salaries, and all fees recovered by them in connection with the performance of such duties must be remitted to the county treasurers of their respective counties. 1953-54 Op. Att'y Gen. No. 54-6033.

Law reviews. — For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 70 Am. Jur. 2d Sheriffs, Police, and Constables §§ 9, 50, 63.

80 C.J.S. Sheriffs and Constables §§ 57 to 60.