NM Stat § 8-5-2 (2021)
2021 New Mexico Statutes|Chapter 8 - Elected Officials|Article 5 - Attorney General|Section 8-5-2 - Duties of attorney general.

Except as otherwise provided by law, the attorney general shall: A. prosecute and defend all causes in the supreme court and court of appeals in which the state is a party or interested; B. prosecute and defend in any other court or tribunal all actions and proceedings, civil or criminal, in which the state may be a party or interested when, in his judgment, the interest of the state requires such action or when requested to do so by the governor; C. prosecute and defend all actions and proceedings brought by or against any state officer or head of a state department, board or commission, or any employee of the state in his official capacity; D. give his opinion in writing upon any question of law submitted to him by the legislature or any branch thereof, any state official, elective or appointive, or any district attorney on any subject pending before them or under their control with which they have to deal officially or with reference to their duty in office; E. prepare drafts for contracts, bonds and other instruments of writing which may be required for the use of the state whenever requested to do so by any state officer; F. promptly account to the state treasurer for all state funds received by him; G. report to the governor and legislature the condition of his office, the text of all opinions rendered and a summary of business transacted of public interest, which report shall be submitted each year; H. keep a register of all opinions rendered and all actions prosecuted and defended by him, and of all proceedings in relation thereto; I. attend and assist in the trial of any indictment or information in any county on direction of the governor; J. appear before local, state and federal courts and regulatory officers, agencies and bodies, to represent and to be heard on behalf of the state when, in his judgment, the public interest of the state requires such action or when requested to do so by the governor; and K. perform all other duties required by law. History: Laws 1933, ch. 21, § 2; 1941 Comp., § 3-302; 1953 Comp., § 4-3-2; Laws 1966, ch. 28, § 15; 1975, ch. 327, § 1. ANNOTATIONSCross references. — For the duty of the attorney general to give advice to the lieutenant governor, see 8-3-2 NMSA 1978. For publication and sale of the opinions and reports of the attorney general, see 8-5-6 NMSA 1978. For the duty to represent any officer, deputy, assistant, agent or employee of the state or a state institution, see 8-5-15 NMSA 1978. For term of office of the attorney general, see N.M. Const., art. V, § 1. For the attorney general as member of the executive department, see N.M. Const., art. V, § 1. For the attorney general residing and keeping books, papers, public records and seal of office at the seat of government, see N.M. Const., art. V, § 1. For the qualifications for the office of attorney general, see N.M. Const., art. V, § 3. For the attorney general's salary, see N.M. Const., art. V, § 12, and 8-1-1 NMSA 1978. For attorney general as counsel for multistate tax commission member, see 7-5-5 NMSA 1978. For attorney general as legal adviser to taxation and revenue department, see 9-11-11 NMSA 1978. For representation of the state or any county by the attorney general, see 36-1-19 NMSA 1978. I. GENERAL CONSIDERATION.Discretion to determine public interest. — The language of this section grants the attorney general discretion in determining when the public interest requires him to bring a civil action on behalf of the state. State ex rel. Bingaman v. Valley Sav. & Loan Ass'n, 1981-NMSC-108, 97 N.M. 8, 636 P.2d 279. Historical. — In the Act of 1859, the duties of the attorney general were coextensive with the territory; but by the Act of 1862, his duties were expressly limited to the supreme court and district courts of the first and second districts. In the Act of January 28, 1863, § 25, the territorial limits within which the attorney general was to exercise his duties was again reduced and restricted to the first judicial district. Territory ex rel. Wade v. Ashenfelter, 1887-NMSC-013, 4 N.M. (Gild.) 93, 12 P. 879, appeal dismissed, 154 U.S. 493, 14 S. Ct. 1141, 38 L. Ed. 1079 (1893). Attorney general has no common-law powers or duties. State ex rel. Norvell v. Credit Bureau of Albuquerque, Inc., 1973-NMSC-087, 85 N.M. 521, 514 P.2d 40. The office of attorney general in New Mexico was created by statute, and its powers and duties defined and limited by statute from its inception. No common-law powers were confirmed in the office of attorney general by the constitution of New Mexico. State v. Davidson, 1929-NMSC-016, 33 N.M. 664, 275 P. 373. Waiving sovereign immunity. — The attorney general's authority is broad enough to include making litigation decisions such as waiving an immunity defense. Abreau v. N.M. Children, Youth and Families Dep't, 646 F.Supp. 2d 1259 (D.N.M. 2009). Section 8-5-2 NMSA 1978, which specifies the powers of the attorney general, does not expressly confer on the attorney general the authority to waive Eleventh Amendment immunity. Guttman v. Khalsa, 320 F.Supp. 2d 1164 (D.N.M. 2003). II. SUPREME COURT AND COURT OF APPEALS.Attorney general must represent state in any appeal. State ex rel. Maloney v. Sierra, 1970-NMSC-144, 82 N.M. 125, 477 P.2d 301. Filing of brief by special assistant attorney general. — Where brief erroneously filed by district attorney was ordered stricken and attorney general and regular assistants disqualified, the special assistant attorney general was allowed 20 days in which to file a brief on the merits. State v. Aragon, 1950-NMSC-053, 55 N.M. 421, 234 P.2d 356. III. OTHER COURTS.Disqualification of attorney general. — The attorney general is the state's highest ranking law enforcement officer, elected by the people of New Mexico. For a court to forbid the attorney general from engaging in a prosecution within the jurisdiction of the office is a serious encroachment on the executive branch. The disqualification of the attorney general is an action that should be undertaken with the greatest circumspection. State v. Armijo, 1994-NMCA-136, 118 N.M. 802, 887 P.2d 1269; cert. denied, 119 N.M. 20, 888 P.2d 466. The approval as to form of a contract that was the subject of a criminal prosecution by the attorney general for financial impropriety was not grounds for disqualifying the attorney general. State v. Armijo, 1994-NMCA-136, 118 N.M. 802, 887 P.2d 1269; cert. denied, 119 N.M. 20, 888 P.2d 466. Duty to prosecute. — Attorney general is charged by statute with the duty of prosecuting in court any action when in his judgment the interest of the state requires such action. State ex rel. Maloney v. Sierra, 1970-NMSC-144, 82 N.M. 125, 477 P.2d 301. Prosecution in federal court. — The attorney general may delegate the power to institute juvenile proceedings in federal court to U.S. attorneys. U.S. v. Dennison, 652 F. Supp.211 )D.N.M. 1986). Protecting state's interests. — Inherent in the attorney general's duty to "prosecute" is the power to initiate civil lawsuits when, in his judgment, the interest of the state is in need of protection. State ex rel. Bingaman v. Valley Sav. & Loan Ass'n, 1981-NMSC-108, 97 N.M. 8, 636 P.2d 279. Prosecution of actions. — This section and 8-5-3 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. State v. Koehler, 1981-NMSC-060, 96 N.M. 293, 629 P.2d 1222. Real party in interest. — The attorney general's duty of prosecuting any action when, in his judgment, the interest of the state is present, makes him a real party in interest. State ex rel. Bingaman v. Valley Sav. & Loan Ass'n, 1981-NMSC-108, 97 N.M. 8, 636 P.2d 279. Right to maintain suit in water-law cases. — The attorney general may maintain suit on behalf of state to enjoin use of unappropriated water for irrigation contrary to law. State ex rel. Bliss v. Dority, 1950-NMSC-066, 55 N.M. 12, 225 P.2d 1007, appeal dismissed, 341 U.S. 924, 71 S. Ct. 798, 95 L. Ed. 1356 (1951). IV. STATE OFFICERS AND EMPLOYEES.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). Attorney general's prosecution of state officer he formerly represented. — The appointment of the New Mexico attorney general, and a deputy attorney general, to act as special assistant United States attorneys for prosecution of criminal charges against the state investment officer and an assistant state treasurer alleging a conspiracy to extort a political contribution involved no inherent or actual conflict of interest under the rules of professional responsibility or this section. An inherent conflict of interest does not arise merely because a state attorney general prosecutes a state officer whom he formerly represented. United States v. Troutman, 814 F.2d 1428 (10th Cir. 1987). Representation of state corporation commission (now public regulation commission) and customers. — The attorney general's representation both of the state corporation commission (now public regulation commission) and of unrepresented customers of a utility is proper. His representation of other parties before the commission is not a conflict of interest and not a violation of his constitutional duty to represent the commission. Mountain States Tel. & Tel. Co. v. Corporation Comm'n, 1982-NMSC-127, 99 N.M. 1, 653 P.2d 501. V. DISTRICT ATTORNEYS.No right to displace generally. — Nothing in this section suggests a right in the attorney general to displace the district attorney in a case where the rights of the state are being actively advocated. State ex rel. Attorney Gen. v. Reese, 1967-NMSC-172, 78 N.M. 241, 430 P.2d 399. Relation between attorney general and district attorneys. — There is nothing in the laws making the attorney general the superior of the district attorneys. The most that can be said concerning the powers of the attorney general in this section is that it gives concurrent right with the district attorney to bring an action, and there is nothing in this section which remotely suggests a right to supplant or take over from a district attorney who is performing his legal duties. State ex rel. Attorney Gen. v. Reese, 1967-NMSC-172, 78 N.M. 241, 430 P.2d 399. Appeal of criminal cases. — District attorney has authority to take an appeal, but it is the prerogative and duty of the attorney general to brief the case and to present it in the 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. VI. OPINIONS.Weight given by supreme court. — The supreme court is not bound by attorney general opinions, and gives them such weight only as it deems they merit and no more. If the court thinks the opinions are right, it follows and approves, and if convinced they are wrong the court rejects them. City of Santa Rosa v. Jaramillo, 1973-NMSC-119, 85 N.M. 747, 517 P.2d 69; First Thrift & Loan Ass'n v. State ex rel. Robinson, 1956-NMSC-099, 62 N.M. 61, 304 P.2d 582; Perea v. Board of Torrance County Comm'rs, 1967-NMSC-056, 77 N.M. 543, 425 P.2d 308. Opinions may be overruled by supreme court. — Opinions of the attorney general are entitled to great weight, however, to the extent they conflict with the conclusions announced by the supreme court, they must be overruled. Hanagan v. Board of County Comm'rs, 1958-NMSC-053, 64 N.M. 103, 325 P.2d 282. Conflict over interpretation subject to declaratory judgment. — Where there was an administrative stalemate, detrimental to public interest, in which attorney general claimed that entire chapter on liquor sales was unconstitutional, contrary to assertion of director of department of alcoholic beverage control, and attorney general construed a separate chapter on liquor sales to allow sale of alcoholic beverages by the drink on Sundays, but director denied such an interpretation, there existed an actual controversy between interested parties rendering suit proper for declaratory judgment relief even though a licensed dispenser of alcoholic beverages was not a party. State ex rel. Maloney v. Sierra, 1970-NMSC-144, 82 N.M. 125, 477 P.2d 301. Attorney general is legal representative of state agencies, departments, etc. — 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." This position is made firm when we remember that the attorney general is the legal representative of all state agencies, departments, etc. 1961 Op. Att'y Gen. No. 61-61. Magistrates. — As a magistrate is a state officer, he is entitled to be represented by the attorney general's office when he is sued as a result of action taken by him in his official capacity. 1971 Op. Att'y Gen. No. 71-83. Formal and informal. — The attorney general is authorized to render formal and official opinions only to those officials stated in this section. However, an informal and unofficial expression of view may be given to nonenumerated officials. 1970 Op. Att'y Gen. No. 70-59. Opinion on qualification of legislator unauthorized. — This section and N.M. Const., art. III, § 1 (separation of powers provision) bar the attorney general from giving an opinion of the issue of whether or not a public school teacher is prohibited from becoming a state legislator. Only the legislature itself can decide the qualifications of its members. 1975 Op. Att'y Gen. No. 75-21. Law reviews. — For article, "Resolving Land-use Disputes by Intimidation: SLAPPSuits in New Mexico," see 32 N.M.L. Rev. 217 (2002). Am. Jur. 2d, A.L.R. and C.J.S. references. — 7 Am. Jur. 2d Attorney General §§ 9 to 13. Right of attorney general to intervene in divorce suit, 22 A.L.R. 1112. Dismissal of criminal proceedings on motion to attorney general, 66 A.L.R. 1378. Power of attorney general to compromise, settle or dismiss suit or proceeding, 81 A.L.R. 124. Quo warranto, concurrent or conflicting powers of prosecuting attorney and attorney general as to bringing action of, 131 A.L.R. 1212. Right of attorney general to represent or serve administrative officer or body to exclusion of attorney employed by such officer or body, 137 A.L.R. 818. Will contest: right of attorney general to intervene in will contest case involving charitable trust, 74 A.L.R.2d 1066. Duty of trustees of charitable trust to furnish information and records to attorney general relating to trust administration, 86 A.L.R.2d 1375. Consumer protection: right of public official to seek restitution of fruits of consumer fraud, without specific statutory authorization, 55 A.L.R.3d 198. 7A C.J.S. Attorney General § 7.