N.M. Stat. § 35-3-4 (2026)

A. Magistrates have jurisdiction in all cases of misdemeanors and petty
misdemeanors, including offenses and complaints under ordinances of a county.
Magistrates also have jurisdiction in any other criminal action where jurisdiction is
specifically granted by law, and they may hold preliminary examinations in any criminal
action where authorized by law.
    B. Magistrates have jurisdiction over all offenses and complaints under ordinances
of a municipality and may issue subpoenas and warrants and punish for contempt if that
municipality has adopted an effective ordinance to provide for magistrate jurisdiction
over municipal ordinances pursuant to the provisions of Subsection B of Section 35-14-
1 NMSA 1978.

    C. In any criminal action in the magistrate court which is beyond the jurisdiction of
the magistrate court, the magistrate may commit to jail, discharge or recognize the
defendant to appear before the district court as provided by law. Whenever the
defendant is bound over to the district court, the magistrate shall forthwith deliver to the
clerk of the district court a transcript of all proceedings in the magistrate court in the
action.

History: 1953 Comp., § 36-3-4, enacted by Laws 1968, ch. 62, § 49; 1973, ch. 206, § 2;
1984, ch. 30, § 2; 1985, ch. 59, § 1; 1985, ch. 147, § 1.

                                     ANNOTATIONS

Repeals. — Laws 1968, ch. 62, § 171, repealed former 36-3-4, 1953 Comp., relating to
grounds for change of venue, effective January 1, 1969.

Cross references. — For sheriff's fees, see 4-41-16 NMSA 1978.

For jurisdiction for assault and battery upon revenue bureau employees, see 7-1-75
NMSA 1978.

For jurisdiction under fish and game laws, see 17-2-9 NMSA 1978.

For duties of enforcement officials in gambling prosecutions, see 30-19-2 NMSA 1978.

For transfer to district court because of insanity defense, see 31-9-1 NMSA 1978.

Delay in enforcing sentence. — Where the court delayed enforcing defendant’s
sentence for thirteen months due to a mistake as to whether defendant was serving the
sentence during and after an appeal, the court did not lose jurisdiction to enforce the
sentence. State v. Calabaza, 2011-NMCA-053, 149 N.M. 612, 252 P.3d 836.

Jurisdiction in felony cases. — The dismissal of a felony charge by a magistrate does
not result in an acquittal because the magistrate court has no jurisdiction to try felony
charges. Consequently, a subsequent indictment is not barred even if the magistrate
determines in a preliminary hearing that there is no probable cause to bind over for trial
in the district court. Moreover, since the magistrate court has no such jurisdiction, no
double jeopardy problem can arise. State v. Peavler, 1975-NMSC-035, 88 N.M. 125,
537 P.2d 1387.
A magistrate court does not have jurisdiction to try felony charges on the merits, but
does have jurisdiction to hold preliminary hearings in any criminal action as authorized
by law. McCormick v. Francoeur, 1983-NMSC-077, 100 N.M. 560, 673 P.2d 1293; State
v. De La O, 1985-NMCA-023, 102 N.M. 638, 698 P.2d 911.

Jurisdiction over aggravated battery. — Magistrate courts have no trial jurisdiction
over aggravated battery, which is a third-degree felony, but do have authority to conduct
preliminary examinations upon charges therefor. State ex rel. Moreno v. Floyd, 1973-
NMSC-117, 85 N.M. 699, 516 P.2d 670.

Jurisdiction under 66-8-102 NMSA 1978. — Section 66-8-102 NMSA 1978 is a valid,
specific grant of concurrent jurisdiction to magistrates in cases involving driving while
under the influence of intoxicating liquor or of drugs, when the same is a first offense.
State v. Rue, 1963-NMSC-090, 72 N.M. 212, 382 P.2d 697.

No jurisdiction over misdemeanor charges tried with related felony. — Because
the district court has original jurisdiction over all felony charges, when misdemeanor
charges brought in a magistrate's court are linked to a felony charge arising out of the
same transaction, the trial should be in the district court. State v. Muise, 1985-NMCA-
090, 103 N.M. 382, 707 P.2d 1192, overruled on other grounds by State v. Laguna,
1999-NMCA-152, 128 N.M. 345, 992 P.2d 896.

No jurisdiction as to municipal ordinances. — Magistrate courts are part of the
judicial department of the state and their criminal jurisdiction does not specifically refer
to municipal ordinances. State v. Biswell, 1971-NMCA-111, 83 N.M. 65, 488 P.2d 115,
cert. denied, 83 N.M. 57, 488 P.2d 107.

No right to refuse second complaint after finding of no probable cause on first. —
A magistrate, who has previously heard evidence under an original criminal complaint
and has found no probable cause, does not have a discretionary right to refuse the filing
of a second complaint. State v. De La O, 1985-NMCA-023, 102 N.M. 638, 698 P.2d
911.

Former Rule 17(b) [new 6-506B NMRA], N.M.R. Crim. P. (Magis. Cts.) did not
conflict with this section, by extending the dispositive powers of magistrates to cover
felony charges. State v. Mann, 1980-NMSC-043, 94 N.M. 276, 609 P.2d 723 (decided
under prior law).

Consent or waiver of jurisdiction not possible. — Where magistrate court is without
subject-matter jurisdiction, there is no possibility of waiver or consent to jurisdiction.
State v. Lynch, 1971-NMCA-049, 82 N.M. 532, 484 P.2d 374.

A claim of a constitutional or a statutory violation does not implicate a magistrate
court's subject matter jurisdiction. — Where defendant was charged in magistrate
court with one misdemeanor traffic violation and three petty misdemeanor violations,
and where, two days before trial, defendant requested copies of jury questionnaires
from the magistrate court clerk, who informed defendant that the magistrate court
required a copying fee for copies of the jury questionnaires, and where, the day before
trial, defendant filed a verified application for free process for indigency, along with a
motion to continue his trial, and where, the next morning, with the jury panel already in
the courtroom for jury selection, the magistrate court orally denied defendant's motion to
continue, and where, following a jury trial, defendant was convicted on all four counts,
and where defendant appealed to the district court and filed a pretrial motion requesting
appellate review of the magistrate court clerk's refusal to provide him free copies of the
jury questionnaires and of the magistrate court's denial of his motion to continue his
trial, and where the district court denied defendant's pretrial motion and held a de novo
jury trial, after which, defendant was again convicted on all four counts, and where, on
appeal, defendant claimed that the magistrate court lost subject matter jurisdiction by
proceeding to trial with an "anonymous" jury, defendant's claim is without merit because
the legislature has provided by statute that magistrates have jurisdiction in all cases of
misdemeanors and petty misdemeanors, and because the motor vehicle offenses with
which defendant was charged are misdemeanors and petty misdemeanors, the
magistrate court had subject matter jurisdiction, and defendant's claim of procedural
violations does not implicate the magistrate court's subject matter jurisdiction. State v.
Lucero, 2022-NMCA-020, cert. denied.

Consideration of jurisdiction not precluded on appeal. — The failure of defendant to
file an answer or plea in the justice of the peace court (now magistrate) or the district
court does not preclude consideration on appeal where the issue raised by defendant
questions the sufficiency of the proof to establish a cause of action under the complaint.
Henderson v. Gibbany, 1966-NMSC-172, 76 N.M. 674, 417 P.2d 807 (decided under
former law).

Jurisdiction over violations of municipal ordinances. — A municipal court does not
have exclusive jurisdiction where driving while intoxicated or acts of domestic violence
are alleged to have occurred within the city limits and to violate both state laws and
municipal ordinances and a municipal peace officer may refer criminal charges to any
prosecutor at any level for evaluation and prosecution in municipal, magistrate, or
district court. Nothing in the law binds an officer to file charges in municipal court where
the charges stem from activities that allegedly violate a municipal ordinance and a state
law or a county ordinance. 2008 Op. Att'y Gen. No. 08-06.

Magistrate can compel restitution. — The magistrate may, as part of its sentencing
power, order a Criminal Code or Motor Vehicle Code violator to make restitution. 1979
Op. Att'y Gen. No. 79-18.

Jurisdiction over juveniles. — Magistrate courts have no jurisdiction over juveniles
under 18 years of age. 1969 Op. Att'y Gen. No. 69-91.

Jurisdiction on Sunday. — Judicial proceedings other than purely formal acts are void
if performed on Sunday. Thus, misdemeanor cases cannot be tried, nor fines imposed,
on Sunday. 1961 Op. Att'y Gen. No. 61-05 (opinion rendered under former law).
Jurisdiction over sentence modification. — Since a magistrate has no power to grant
a new trial, he has no power to alter, change or suspend either the fine or a jail
sentence after he has issued a jail commitment to the county sheriff even if defendant
were less than 21 (now 18) years of age. 1969 Op. Att'y Gen. No. 69-91.

Jurisdiction for Motor Transportation Act violations. — Section 35-3-4 NMSA 1978,
prior to its 1973 amendment, did not give magistrate courts jurisdiction to try cases
arising out of violations of the Motor Transportation Act (65-1-1 to 65-1-37, 65-3-1, 65-5-
1 to 65-5-3, 66-6-2, 66-7-411 to 66-7-415 NMSA 1978). 1969 Op. Att'y Gen. No. 69-53.

No jurisdiction where penalty exceeds statutory limits. — If the penalty for a
misdemeanor set by the legislature prescribes a fine or imprisonment or both and either
the fine or penalty exceeds the statutory jurisdictional limits of magistrate's courts, these
courts are without jurisdiction to try such a violation. This does not disturb the
jurisdiction of misdemeanors specifically granted to magistrate's courts by the
legislature. 1960 Op. Att'y Gen. No. 60-148.

Maximum penalty determines jurisdiction. — Where the maximum penalty which
may be imposed exceeds the jurisdictional limits of the authority of a magistrate, the
court thereby loses jurisdiction to try the person accused. To do otherwise would be to
lessen the penalties which the legislature has deemed assessable for the named
offense. 1960 Op. Att'y Gen. No. 60-188.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Justices of the Peace §
35.