N.M. Stat. » N.M. Stat. / Chapter 8 / Article 5
New Mexico Statutes

N.M. Stat. § 8-5-3 (2026)

[Action in civil and criminal cases.]

✓ current as of May 2026
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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.

                                      ANNOTATIONS

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.
Notes of Decisions
Cited in 12 cases (4 in the last 5 years), 1979–2025 · leading case: State Ex Rel. Attorney Gen. v. First Jud. Dist. Court, 629 P.2d 330 (N.M. 1981).
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State Ex Rel. Attorney Gen. v. First Jud. Dist. Court, 629 P.2d 330 (N.M. 1981). · cites it 2× “§ 8-5-3, N.M.S.A. 1978. It is only where information relating to or assisting in an investigation of a possible violation of law was furnished to the Attorney General as a law enforcement officer that he would have a privilege to refuse to disclose the identity of the person who…”
State v. Naranjo, 611 P.2d 1101 (N.M. 1980). · cites it 2× “This statute is tempered by the provisions of Section 8-5-3, which provide that the attorney general may act if the district attorney fails or refuses to act.”
State v. Koehler, 629 P.2d 1222 (N.M. 1981). · cites it 4× “” Section 8-5-3 specifies that upon the “failure or refusal” of any DA to act in any criminal case, the AG is authorized to act.”
State v. Naranjo, 611 P.2d 1107 (N.M. Ct. App. 1979). · cites it 2× “Section 8-5-3, N.M.S.A.1978. The District Attorney did not fail or refuse to act.”
Am. Civil Liberties Union v. Johnson, 4 F. Supp. 2d 1024 (D.N.M. 1998). · cites it 2× “”) and N.M.StatAnn. § 8-5-3 (“providing that ...”
State v. Surratt, 2016 NMSC 004 (N.M. 2015). · cites it 2× “, NMSA 1978, § 8-5-3 (1933) (authorizing the attorney general to act “upon the failure or refusal of any district attorney to act”as otherwise authorized “in any criminal or civil case” in the interest of a “county, state, or any department thereof’); § 36-1-19(A) (giving the…”
Johnson & Johnson v. Wilson, 563 P.3d 841 (N.M. 2024). · cites it 2× “4; see also NAAG, Powers, Duties and Operations of State Attorneys General, 197-98 (1977) (predecessor of the 2018 NAAG edition) (recognizing New Mexico’s prior compilations of Section 8-5-2(B) and NMSA 1978, Section 8-5-3 (1933) as specific among counterpart statutes…”
Quintana v. Bravo, 2013 NMSC 11 (N.M. 2013). · cites it 2× “See NMSA 1978, § 8-5-2 (1975); NMSA 1978, § 8-5-3 (1933); State v. Koehler, 96 N.”
State v. Surratt, 2016 NMSC 4 (N.M. 2015). · cites it 2× “, NMSA 1978, § 8-5-3 (1933) (authorizing the attorney general to act “upon the failure or refusal of any district attorney to act”as otherwise authorized “in any criminal or civil case” in the interest of a “county, state, or any department thereof”); § 36-1- 19(A) (giving the…”
Johnson & Johnson v. Wilson (N.M. 2024). · cites it 2× “4; see also NAAG, Powers, Duties and Operations of State Attorneys General, 197-98 (1977) (predecessor of the 2018 NAAG edition) (recognizing New Mexico’s prior compilations of Section 8-5-2(B) and NMSA 1978, Section 8-5-3 (1933) as specific among counterpart statutes…”
Borrego v. First Jud. Dist. Atty's Off. (N.M. Ct. App. 2025). · cites it 2× “7The position of attorney general is established in the New Mexico Constitution, and has been vested, as head of the NMDOJ, with concurrent authority to prosecute criminal offenses with district attorneys by our Legislature.”
Borrego v. First Jud. Dist. Att'y's Off. (N.M. Ct. App. 2025). “V, § 1; see NMSA 1978, § 8-5-1 (1933); NMSA 1978, § 8-5-2 (1975); NMSA 1978, § 8-5-3 (1933). Accordingly, similar reasoning as applied in this section and opinion to district attorneys applies to the attorneys general.”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.