2021 New Mexico Statutes
Chapter 8 - Elected Officials
Article 5 - Attorney General
Section 8-5-3 - [Action in civil and criminal cases.]

That upon the failure or refusal of any district attorney to act in any criminal or civil case or matter in which the county, state or any department thereof is a party or has an interest, the attorney general be, and he is hereby, authorized to act on behalf of said county, state or any department thereof, if after a thorough investigation, such action is ascertained to be advisable by the attorney general. Provided, that the attorney general shall, upon direction of the governor, investigate any matter or matters in any county of the state in which the county, state or any department may be interested. After such investigation, the attorney general be, and he is hereby authorized to take such action as, in his opinion, conditions warrant. The cost of such investigation shall be paid out of the general fund of the county wherein such investigation shall have been made, and the costs of any prosecution arising out of such investigation shall be paid as are the costs in cases prosecuted by district attorneys.

History: Laws 1933, ch. 21, § 3; 1941 Comp., § 3-303; 1953 Comp., § 4-3-3.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Governor as defendant to constitutional challenge. — The governor, as represented by the attorney general, because of his ability to influence the prosecution of violators, is the proper defendant in an action alleging that the statute prohibiting dissemination of "harmful" material to a minor over a computer network is facially invalid on First Amendment grounds. American Civil Liberties Union v. Johnson, 4 F. Supp. 2d 1024 (D.N.M. 1998), aff'd, 194 F.3d 1149 (10th Cir. 1999).

No right to displace generally. — There is nothing in the laws making the attorney general the superior of the district attorneys. Otherwise, the provision granting the attorney general a right to displace a district attorney only "upon the failure or refusal of any district attorney to act" would be clearly surplusage and unnecessary. State ex rel. Attorney Gen. v. Reese, 1967-NMSC-172, 78 N.M. 241, 430 P.2d 399.

Powers when district attorney delegates prosecution. — This section and 8-5-2 NMSA 1978 permit the attorney general to bring an action on behalf of the state if no other provision has been made for it to be brought, or to step into litigation brought by another where the interests of the state are not being adequately represented or protected. Where a district attorney delegates a prosecution to the attorney general, the attorney general may proceed under the authority of this section. State v. Koehler, 1981-NMSC-060, 96 N.M. 293, 629 P.2d 1222.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Right of attorney general to intervene in divorce suit, 22 A.L.R. 1112.

7A C.J.S. Attorney General §§ 11, 12, 13.