N.M. Stat. § 8-5-2 (2026)

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.

                                      ANNOTATIONS

Cross 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.

Attorney general's authority to obtain and produce documents and information
from a state executive agency that is not a named party to the litigation. — Where
the New Mexico office of the attorney general (OAG), on behalf of the state, brought an
action seeking equitable and injunctive relief, civil penalties, and money damages,
including restitution, against defendants for allegedly selling talcum powder products in
New Mexico despite knowledge that those products contained carcinogens, including
asbestos, and where, during discovery, the attorney general moved to compel the
production of materials from state agencies named in the complaint but not parties to
the litigation, arguing that the state, through its attorney general, having brought a
complaint alleging damages that include executive agency expenditures, must produce
documents and information within the possession, custody, or control of those agencies,
and where, following the state of New Mexico's opposing motion, the district court
denied the attorney general's motion to compel, concluding that the state agencies
mentioned in the state's amended complaint were not subject to common executive
control, the district court erred in denying the OAG's motion to compel, because the
broad and exclusive statutory powers conferred upon the attorney general to initiate and
take charge of state-interest civil litigation would necessarily encompass the authority, if
not the obligation, to produce responsive documents and information created or
possessed by non-party executive agencies, and it is a well-acknowledged canon of
statutory construction that whenever a power is given by a statute, everything
necessary to making it effectual is implied. Johnson & Johnson v. Wilson, 2025-NMSC-
003.

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.

New Mexico Attorney General’s office issues opinions on questions of law. — The
Attorney General’s Office issues opinions on questions of law, is not an adjudicative
body, and does not resolve factual disputes that may be resolved by a court. 2024 Op.
Att’y Gen. Adv. Ltr. No. 2024-02.

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.