2020 New Mexico Statutes
Chapter 4 - Counties
Article 41 - County Sheriff
Section 4-41-10 - Right to carry arms; deputies; appointment.

All sheriffs shall at all times be considered as in the discharge of their duties and be allowed to carry arms on their persons. On the appointment of any regular or permanent deputy sheriff, it shall be the duty of the sheriff to file one notice of the appointment in the office of the county clerk of the sheriff's county and one notice of the appointment in the office of the clerk of the district court of that county, and each of the sheriff's deputies shall file an oath of office in the office of the county clerk. Any sheriff is hereby authorized at any time to appoint respectable and orderly persons as special deputies to serve any particular order, writ or process or when in the opinion of any sheriff the appointment of special deputies is necessary and required for the purpose of preserving the peace, and it shall not be necessary to give or file any notice of such special appointment; however, the provision authorizing the carrying of concealed arms shall not apply to such persons. Provided, no person shall be eligible to appointment as a deputy sheriff unless the person is a citizen of the United States of America. There shall be no additional fees or per diem paid by the counties for any additional deputies other than as provided by law.

History: Laws 1891, ch. 63, § 4; C.L. 1897, § 738; Laws 1901, ch. 5, § 1; Code 1915, § 1258; C.S. 1929, § 33-4414; 1941 Comp., § 15-3812; 1953 Comp., § 15-40-12; 1983, ch. 182, § 1; 2006, ch. 30, § 1.

Cross references. — For qualifications of deputy sheriffs, see 4-41-8 NMSA 1978.

For payment of expenses of sheriffs, deputy sheriffs and guards for serving process and certain other official business, see 4-44-18 NMSA 1978.

For oaths and bonds of deputy county officers, see 4-44-35 NMSA 1978.

For oath of public officers, see N.M. Const., art. XX, § 1.

For requirement that deputy sheriffs be citizens of New Mexico, see 29-1-9 NMSA 1978.

The 2006 amendment, effective March 2, 2006, deleted the requirement that a deputy sheriff be a legally qualified voter of the state of New Mexico and required that a deputy sheriff be a citizen of the United States of America.

Tribal officer was properly cross-commissioned. — Where defendant, who was a non-Indian, was arrested by a Pueblo police officer on property of the Pueblo and charged in a county magistrate court with aggravated DWI; the officer was cross-commissioned as a county special deputy sheriff by the county sheriff's office; the officer signed an oath of office that was also signed by the county sheriff and carried a card issued by the county sheriff's office indicating the officer's cross-commissioning status; the officer was wearing the Pueblo police department uniform at the time of the arrest; the officer was a commissioned, full-time Pueblo tribal officer; and the officer's salary was paid by the Pueblo police department and included incremental pay financed from a grant from the bureau of Indian affairs to assist the Pueblo police department in targeting the motoring public, the officer was properly cross-commissioned and could properly arrest defendant while wearing the uniform of and receiving a salary from the Pueblo police department. State v. Sanchez, 2014-NMCA-095.

Notice of the appointment of special deputies need not be filed with the county clerk or district court clerk. Eaton v. Bernalillo Cnty., 1942-NMSC-040, 46 N.M. 318, 128 P.2d 738.

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.

Testimony of improperly appointed officer. — Trial court did not abuse its discretion in admitting the testimony of a deputy sheriff in his capacity as a deputy sheriff in a criminal prosecution, even though he was not a registered voter as required by this section. State v. Martinez, 1986-NMCA-069, 104 N.M. 584, 725 P.2d 263.

Dismissal of charges not appropriate remedy. — Fact that undercover officer failed to comply with the oath and appointment requirements of this section did not warrant dismissal of charges against defendant, as officer was still qualified to testify. State v. Vallejos, 1998-NMCA-151, 126 N.M. 161, 967 P.2d 836, cert. denied, 126 N.M. 107, 967 P.2d 447.

Common law. — At common law a sheriff could appoint an under-sheriff and as many general or special deputies as the public service may have required. 1957 Op. Att'y Gen. No. 57-83.

All sheriffs are on duty at all times and the same would be true of paid deputies even though their specific duties might be restricted. 1966 Op. Att'y Gen. No. 66-91.

Appointment of special deputy. — Sheriff can commission as special deputy sheriff a full-time law enforcement officer employed by a municipality, the Navajo tribe or the federal government. The applicants, of course, would have to secure the appointment from the sheriff of the county in which they wish to act and qualify in accordance with 29-1-9, 4-41-8 NMSA 1978 and this section, and any other statutes of the state of New Mexico pertaining to the qualification of deputy sheriffs. 1957 Op. Att'y Gen. No. 57-83.

Appointment of special deputy. — There is no legal prohibition in this section against an appointment of a city policeman as a special deputy sheriff solely for the purpose of serving papers. 1958 Op. Att'y Gen. No. 58-38.

Payment of special deputy for services performed. — A city policeman appointed as a special deputy sheriff for purpose of serving papers may not be paid for such serving both as city policeman and special deputy sheriff. 1958 Op. Att'y Gen. No. 58-38.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 80 C.J.S. Sheriffs and Constables §§ 45, 46.