2021 New Mexico Statutes
Chapter 8 - Elected Officials
Article 5 - Attorney General
Section 8-5-5 - Assistant attorneys general; other employees; appointment.

A. The attorney general may appoint a deputy attorney general and as many other assistant attorneys general together with stenographic, clerical and other necessary employees on a full- or part-time basis, at salaries to be fixed by him within budget allowances and appropriation limits, as the business of the department shall require and who shall hold office at the pleasure of the attorney general. The deputy attorney general and the assistant attorneys general shall, subject to the direction of the attorney general, have the same power and authority as the attorney general.

B. Within legislative appropriations, the attorney general may appoint full-time salaried members of his staff as peace officers for the full-time investigation of violations of, and, and the full-time enforcement of, the criminal laws of the state. These employees shall comply with the certification provisions of Section 29-7-8 NMSA 1978 [repealed].

History: Laws 1933, ch. 21, § 5; 1941 Comp., § 3-305; 1953 Comp., § 4-3-5; Laws 1955, ch. 119, § 1; 1965, ch. 214, § 1; 1979, ch. 356, § 1; 1988, ch. 92, § 1.

Bracketed material. — The bracketed material was inserted by the compiler and it is not a part of the law. Laws 1993, ch. 255, § 11 repealed 29-7-8 NMSA 1978, effective July 1, 1993.

Cross references. — For special assistant attorney general representing oil conservation commission, see 70-2-35 NMSA 1978.

Duty to appoint assistant attorneys general as special prosecutors. — If a district attorney does not perform properly and adequately his legal duties of investigation and prosecution of civil and criminal cases, and particularly where the district attorney and the attorney general recused their respective offices from participation because of a possible conflict, then the attorney general not only has the power, but it is his duty, where conditions warrant, to perform these functions and to appoint assistant attorneys general as special prosecutors for the appropriate purposes. State v. Naranjo, 1980-NMSC-061, 94 N.M. 407, 611 P.2d 1101.

Formal swearing-in ceremony not required. — Assistant attorneys general appointed pursuant to this section are not required to undergo the same formal swearing-in ceremony as the attorney general or other public official. State v. Koehler, 1981-NMSC-060, 96 N.M. 293, 629 P.2d 1222.

The Personnel Act applies to all state employees, including employees of the office of the attorney general, unless specifically excluded. — Where, in 2015, the newly elected New Mexico attorney general, before taking office, terminated certain employees within the office of the attorney general (OAG), and where the employees appealed to the state personnel board (board) claiming that 10-9-4 NMSA 1978 made all employees of the OAG classified employees who could not be discharged without the procedural protections of the Personnel Act, 10-9-1 to -25 NMSA 1978, and where the attorney general claimed that all employees of the OAG are exempt because they all serve at the pleasure of the attorney general pursuant to 8-5-5 NMSA 1978, the board erred in concluding that it did not have subject matter jurisdiction to hear the employees' appeal on the ground that the employees were not entitled to the protections of the Personnel Act, because the Personnel Act, as a comprehensive revision of the law on the subject of state public employment, supersedes 8-5-5 NMSA 1978, and the plain language of this section specifically provides that the Personnel Act applies to "all state positions" except those falling within specific categories. Landau v. N.M. Att'y Gen., 2019-NMCA-041, cert. denied.

Assistant attorney general's salary set by attorney general. — As assistant attorney general is a state officer not subject to the salary classification of the Personnel Act. Further, the legislature has delegated to the attorney general of the state of New Mexico the exclusive right to set the salaries of his assistants. Such power is subject only to the budget allowances and appropriation limits. Thus, it is apparent if the attorney general has the funds available for the payment of his assistants, he may pay them individually such salaries as in his opinion shall be warranted. 1958. Op. Att'y Gen. No. 58-29.

This section clearly indicates that the attorney general of New Mexico shall fix the salaries of his assistants subject only to budget allowances and appropriation limits. 1958 Op. Att'y Gen. No. 58-29.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 7A C.J.S. Attorney General § 4.