2020 New Mexico Statutes
Chapter 36 - Attorneys
Article 1 - District Attorneys
Section 36-1-18 - Duties of district attorney.
A. Each district attorney shall:
(1) prosecute and defend for the state in all courts of record of the counties of his district all cases, criminal and civil, in which the state or any county in his district may be a party or may be interested;
(2) represent the county before the board of county commissioners of any county in his district in all matters before the board whenever requested to do so by the board, and he may appear before the board when sitting as a board of equalization without request;
(3) advise all county and state officers whenever requested; and
(4) represent any county in his district in all civil cases in which the county may be concerned in the supreme court or court of appeals, but not in suits brought in the name of the state.
B. A district attorney may contract with an Indian nation, tribe or pueblo within the boundaries of the district attorney's judicial district for the purpose of authorizing the district attorney or his staff to:
(1) serve as a tribal prosecutor; or
(2) prosecute alleged violations of tribal codes by tribal members in tribal courts.
History: Laws 1909, ch. 22, § 2; Code 1915, § 1859; C.S. 1929, § 39-108; 1941 Comp., § 17-111; 1953 Comp., § 17-1-11; Laws 1966, ch. 28, § 30; 2001, ch. 178, § 2.
ANNOTATIONSCompiler's notes. — The 1915 Code compilers deleted from the end of former subdivision 2 (now Paragraph A(2)) "and he shall appeal from the decisions of such board to the territorial board of equalization whenever in his judgment the same should be done, and a right of appeal in such cases is hereby given." The state board of equalization, as provided for in the constitution, was in effect abolished by the amendment to art. VIII, § 5, of the constitution adopted in 1914. The provisions concerning appeals to the state board of equalization were repealed by Laws 1915, ch. 54, § 5. Provisions relating to county valuation protests boards and proceedings thereof are compiled as 7-38-25 NMSA 1978 et seq.
Cross references. — For prosecution of solicitation of claims by attorneys, see 36-2-37 NMSA 1978.
For duties as member of commission to determine county boundary disputes, see 4-35-1 NMSA 1978.
For duty of attorney general to act when district attorney fails to act, see 8-5-3 NMSA 1978.
For duties relating to removal of officers, see 10-4-17 to 10-4-20 NMSA 1978.
For prosecutions for shortages in officer's accounts, see 10-17-9 to 10-17-11 NMSA 1978.
For duties relating to minimum wage actions by employees of public contractors, see 13-4-14 NMSA 1978.
For duties relating to fish and game laws, see 17-2-27 NMSA 1978.
For duties relating to failure to record townsite patent, see 19-4-3 NMSA 1978.
For duties relating to enforcement of law regarding burial of indigent persons, see 24-13-8 NMSA 1978.
For duties as attorney for persons seeking reemployment after discharge from armed forces, see 28-15-3 NMSA 1978.
For duties relating to grand juries, see 31-6-7 NMSA 1978.
For duties as ex-officio children's court attorney, see 32A-1-6 NMSA 1978.
For petitions under Children's Code generally, see 32A-1-10 NMSA 1978.
For duties relating to interstate family support, see 40-6A-308 NMSA 1978.
For duties as attorney for employment security commission, see 51-1-40 NMSA 1978.
For enforcement of Retail Installment Sales Act, see 56-1-10 and 56-1-11 NMSA 1978.
For duty to enforce motion picture regulations, see 57-5-2 NMSA 1978.
For duties relating to false advertising, see 57-15-4 to 57-15-8 NMSA 1978.
For prosecution of violations of Dental Health Care Act, see 61-5A-18 NMSA 1978.
For prosecution of violations of Motor Carrier Transportation Agent Law, see 65-4-15 NMSA 1978.
For duties relating to representation of soil and water conservation districts, see 73-20-41 NMSA 1978.
For duties relating to county board of horticultural commissioners, see 76-3-6 NMSA 1978.
For prosecution of seed law violations, see 76-10-21 NMSA 1978.
For prosecution of violations of Pecan Industry Law, see 76-16-8 NMSA 1978.
The 2001 amendment, effective July 1, 2001, inserted the Subsection A designation, added Subsection B and redesignated former Subsections A to D as Paragraphs A(1) to (4).
Obligation of prosecutor. — The prosecutor is a public officer with duties quasi-judicial in nature. The prosecutor's obligation is not only to protect the public interest but also the rights of the accused. In the performance of the prosecutor's duties, the prosecutor must not only be disinterested and impartial, but must also appear to be so. State v. Hill, 1975-NMCA-093, 88 N.M. 216, 539 P.2d 236 (Ct. App. 1975).
Discretion to determine criminal charges. — The district attorney makes the determination whether to file criminal charges and which charges to file. State v. Session, 1978-NMCA-005, 91 N.M. 381, 574 P. 2d 600; State v. Estrada, 2001-NMCA-034, 130 N.M. 358, 24 P.3d 793, cert. denied, 130 N.M. 459, 26 P.3d 103.
Familial relationship between defendant and district attorney. — Where defendant claimed that the district attorney was a third cousin of the defendant and that in Navajo culture, defendant and the district attorney had a clan relationship that made the district attorney culturally the grandfather of defendant, and the district attorney swore in an affidavit that although the district attorney was one-half Navajo, the district attorney was unaware of any clan relationship with defendant, that the district attorney had never had personal or direct contact with defendant until after the prosecution of defendant's case had begun, and that the district attorney had only recently discovered that the district attorney's grandmother was the sister of defendant's great-grandfather, the trial court did not abuse its discretion in determining that the familial relationship between the district attorney and defendant was insufficient to create a personal bias that warranted disqualification. State v. Juan, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314.
Disqualification of district attorney's office. — Where defendant's spouse wrote letters to the disciplinary board and to the prosecutor's supervisor and the prosecutor had initiated a federal investigation into defendant's spouse for stalking, the actions of defendant's spouse and the prosecutor did not create a disqualifying interest warranting the recusal of the prosecutor and the district attorney's office. State v. Trujillo, 2012-NMCA-112, 289 P.3d 238, cert. granted, 2012-NMCERT-011.
Threats against a prosecutor. — A defendant does not create a disqualifying interest and cannot choose his or her prosecutor for an underlying offense by the use of threats against prosecutors. An entire district attorney's office is not subject to disqualification unless an individual prosecutor is disqualified and there is a danger that the prosecutor's bias or disqualifying interest will taint the remaining attorneys in the office or give the appearance of impropriety to continued prosecution by other attorneys. State v. Robinson, 2008-NMCA-036, 143 N.M. 646, 179 P.3d 1254, cert. denied, 2008-NMCERT-002, 143 N.M. 666, 180 P.3d 673.
Historical law officer of the territory. — Prior to the adoption of the constitution the district attorney was by statute the law officer of the territory, and was required to represent the territory, within his district, in all cases, civil and criminal, and to give advice, when requested, to territorial officials. State ex rel. Ward v. Romero, 1912-NMSC-011, 17 N.M. 88, 125 P. 617.
Under the constitution, the district attorney is a part of the judicial system of the state, and is a quasi-judicial officer. State ex rel. Ward v. Romero, 1912-NMSC-011, 17 N.M. 88, 125 P. 617.
District officer construed. — The words "district officer" used in N.M. Const., art. XX, § 3, refer to the district attorney and district judge, but the words were used to designate the geographical limits within which such officer performed the duties of his office, and did not refer to the nature and grade of the office. State ex rel. Ward v. Romero, 1912-NMSC-011, 17 N.M. 88, 125 P. 617.
District attorney has no powers outside his district, nor does he have any common-law powers. State ex rel. Attorney Gen. v. Reese, 1967-NMSC-172, 78 N.M. 241, 430 P.2d 399.
District attorney or attorney general to represent state in criminal proceedings. — Although Subsection A does not require the district attorney to appear in a nonrecord court such as the metropolitan court, 36-1-19 NMSA 1978 prohibits anyone other than the attorney general's office and district attorney's office from representing the state in a criminal proceeding, except on order of the court and with the consent of those offices. State v. Baca, 1984-NMCA-096, 101 N.M. 716, 688 P.2d 34.
Institution of probation revocation proceedings. — Although the specific procedural authority of 40A-29-20, 1953 Comp., had been repealed, the district attorney, as the chief law officer of his district, had authority to institute probation revocation proceedings. State v. Paul, 1971-NMCA-107, 82 N.M. 791, 487 P.2d 493.
Appearance on appeal in criminal cases. — District attorney has authority to take an appeal, but it is the prerogative and duty of attorney general to brief the case and to present it in supreme court, and a district attorney may appear on appeal in a criminal case only by permission of the attorney general and in association with him. State v. Aragon, 1950-NMSC-053, 55 N.M. 421, 234 P.2d 356, rev'd on other grounds, 1951-NMSC-052, 55 N.M. 423, 234 P.2d 358.
Authority of district attorney to bind state agency. — When representing the state in a prosecution for driving under the influence, a district attorney had the authority to bind the motor vehicle division to the judgment and sentence which, pursuant to a plea bargain, expressly provided that the conviction was to be treated as a first conviction. Collyer v. State Taxation & Revenue Dep't Motor Vehicle Div., 1996-NMCA-029, 121 N.M. 477, 913 P.2d 665.
Office's immunity in defamation suit. — In a defamation suit arising out of a report prepared by an assistant district attorney at the request of the district attorney, the trial court's ruling of absolute immunity was based upon the concepts of judicial immunity, because the office of district attorney is a quasi-judicial office, as well as executive immunity, because that office has duties which cannot be properly classified as quasi-judicial. Candelaria v. Robinson, 1980-NMCA-003, 93 N.M. 786, 606 P.2d 196.
No fee for representation of the county. — All services rendered to boards of county commissioners by district attorneys are official duties. There are no legal services that can be rendered by a district attorney for a board of county commissioners for which the district attorney may exact extra compensation. Hanagan v. Board of Cnty. Comm'rs, 1958-NMSC-053, 64 N.M. 103, 325 P.2d 282.
If criminal complaint is filed by sheriff without consent of the district attorney, the latter may at any time step in and take charge of the case and the prosecution on behalf of the state, since he is the chief law enforcement officer and the state's prosecutor in his district. 1939 Op. Att'y Gen. No. 39-3257.
District attorney may initiate a foreclosure action in the name of the county treasurer interested in the particular assessment. 1958 Op. Att'y Gen. No. 58-77.
District attorneys are not required to defend sheriffs in civil suits. Their duties are limited solely to representing the interests of the state in criminal and civil actions. 1959 Op. Att'y Gen. No. 59-98.
The district attorney is not obligated to represent a county sheriff in a civil suit. 1959 Op. Att'y Gen. No. 59-47.
District attorney to "represent the county" and "advise county officials." These terms are used in the generally accepted sense, namely, the district attorney is to serve as attorney for the county in all matters when called upon to so act. The legislature intended to make the district attorney the attorney for the counties of his district. 1956 Op. Att'y Gen. No. 56-6565.
District attorney to represent the county. — Whenever the county commissioners request representation in any matter before them, it is the duty of the district attorney to act for such county. 1956 Op. Att'y Gen. No. 56-6565.
Duty to advise state officers found in this section is limited to those matters relating to and pending in the judicial district in which the district attorney is located - not to matters of statewide application. 1961 Op. Att'y Gen. No. 61-61.
Duty to advise limited. — While a district attorney is to advise state officers within his district when requested, this means "advise these officers on matters relating to the judicial district in which he is located." 1961 Op. Att'y Gen. No. 61-61.
Law reviews. — For comment, "The Use of an Information Following the Return of a Grand Jury No Bill: State v. Joe Nestor Chavez," see 10 N.M.L. Rev. 217 (1979-80).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Prosecuting Attorney §§ 1, 4, 20 to 24, 26 to 29.
Confidential communications, 9 A.L.R. 1109, 59 A.L.R. 1555.
Liability for slander, 15 A.L.R. 429.
Criminal offenses, prosecution for, duty and discretion of district or prosecuting attorney as regards, 155 A.L.R. 10.
Change of venue, power or duty of prosecuting attorney to continue with prosecution after, 60 A.L.R.2d 864.
Enforceability of agreement by law enforcement officials not to prosecute if accused would help in criminal investigation or would become witness against others, 32 A.L.R.4th 990.
Who may institute proceedings to revoke probation. 21 A.L.R.5th 275.
Disqualification of prosecuting attorney in state criminal case on account of relationship with accused, 42 A.L.R.5th 581.
27 C.J.S. District and Prosecuting Attorneys § 12.
