There shall be a district attorney for each judicial district, who shall be learned in the law, and who shall have been a resident of New Mexico for three years next prior to his election, shall be the law officer of the state and of the counties within his district, shall be elected for a term of four years, and shall perform such duties and receive such salary as may be prescribed by law.

The legislature shall have the power to provide for the election of additional district attorneys in any judicial district and to designate the counties therein for which the district attorneys shall serve; but no district attorney shall be elected for any district of which he is not a resident.

ANNOTATIONS

Cross references. — For statutory provisions relating to district attorneys, see 36-1-1 NMSA 1978 et seq.

"Learned in the law" and being a "licensed attorney" are synonymous. State ex rel. Chavez v. Evans, 1968-NMSC-167, 79 N.M. 578, 446 P.2d 445, 39 A.L.R.3d 290.

"Learned in the law" was an expression well known and understood when the constitution was drafted, and as interpreted, the meaning is the same as "licensed attorney", the term used in N.M. Const., art. V, § 3, referring to qualifications for office of attorney general. State ex rel. Chavez v. Evans, 1968-NMSC-167, 79 N.M. 578, 446 P.2d 445, 39 A.L.R.3d 290.

Admission to practice law before the highest courts of a state amounts to a determination, prima facie at least, that an individual is learned in the law, and in the absence of such admission, a person is presumptively not learned in the law. State ex rel. Chavez v. Evans, 1968-NMSC-167, 79 N.M. 578, 446 P.2d 445, 39 A.L.R.3d 290.

Admission to practice, or qualification to be admitted, is no less a requirement for district attorneys than is true of supreme court justices; the only difference is that district attorneys need not have had the actual practice required in N.M. Const., art. VI, § 8. State ex rel. Chavez v. Evans, 1968-NMSC-167, 79 N.M. 578, 446 P.2d 445, 39 A.L.R.3d 290.

This article makes district attorney the law officer of the counties of his district. State ex rel. Board of Cnty. Comm'rs v. Board of Cnty. Comm'rs, 1954-NMSC-124, 59 N.M. 9, 277 P.2d 960.

District attorney is judicial officer in the sense in which those words are used in law relating to bribery of officers. The office is created and its duties are broadly defined by this section of the constitution. It was evidently intended by the constitutional convention to classify the office as judicial, since this article establishes the judicial department. State v. Collins, 1922-NMSC-063, 28 N.M. 230, 210 P. 569.

Attorney general and district attorneys may appear as relators on behalf of state. State ex rel. McCulloh v. Polhemus, 1947-NMSC-038, 51 N.M. 282, 183 P.2d 153.

Authority to file action. — Suit on behalf of state to recover salary paid to state highway commission (state transportation commission) chairman could be filed by district attorney. State ex rel. Attorney Gen. v. Reese, 1967-NMSC-172, 78 N.M. 241, 430 P.2d 399.

Services to county commissioners. — There are no legal services that can be rendered by a district attorney for the board of county commissioners for which he may exact extra compensation; the very act of advising the board with respect to the validity of a contract was an official act, required of his office. Hanagan v. Board of County Comm'rs, 1958-NMSC-053, 64 N.M. 103, 325 P.2d 282.

Appearance on appeal. — District attorney has authority to take an appeal, but it is the prerogative and duty of attorney general to brief the case and to present it in supreme court; 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.

Compensation. — The district attorney is a state officer and is precluded from receiving fees, allowances or emoluments other than the salary provided by law. Until such law is enacted, he is not entitled to compensation, but it may date back to his induction into office. State ex rel. Ward v. Romero, 1912-NMSC-011, 17 N.M. 88, 125 P. 617.

Under Laws 1917, ch. 18 (since repealed), salary of a district attorney could be garnished in hands of disbursing officer of state, since constitution does not specify his salary. Stockard v. Hamilton, 1919-NMSC-018, 25 N.M. 240, 180 P. 294.

Removal statute inapplicable. — As the district attorney in 1909, when 10-4-1 NMSA 1978 was passed, was an officer appointed by the governor of the state by and with the consent of the legislature, and not a "county, precinct, district, city, town or village officer elected by the people," district attorney is not amenable to removal under that section. State ex rel. Prince v. Rogers, 1953-NMSC-101, 57 N.M. 686, 262 P.2d 779.

Unconstitutional alteration to the terms of office. — Where petitioners, a class of public officers affected by the election deferral provisions of HB 407, passed by the 2019 legislature, filed petitions for writs of mandamus challenging the constitutionality of HB 407 to the extent it postponed the times of election and extended the constitutionally mandated terms of certain public offices, the New Mexico supreme court issued writs of mandamus prohibiting the implementation of the affected provisions because they impermissibly alter the constitutionally prescribed terms of office of the petitioning groups. State ex rel. Sugg v. Toulouse Oliver, 2020-NMSC-002.

Paternity determinations. — Upon request by the welfare department (now human services department), a district attorney must assist in paternity determinations if the child is likely to be a public charge. 1959 Op. Att'y Gen. No. 59-47.

District attorney is required to represent soil conservation district in collecting for work done by the soil conservation district for members of their organization. 1959 Op. Att'y Gen. No. 59-47.

District attorney is not obligated to represent county sheriff in a civil suit. 1959 Op. Att'y Gen. No. 59-47.

Appearance in justice of peace courts. — In view of the above constitutional provision and the statutes of the state, the district attorney as chief law enforcement officer has the authority to appear in any case filed before any justice of the peace (now magistrate courts) in any county in his district when, in his opinion, the interests of the people in his district require his participation. 1953 Op. Att'y Gen. No. 53-5669.

As a practical matter, district attorney may file a complaint in any justice of the peace court (now magistrate court) which he deems proper (absent an abuse of discretion) in any criminal action which he desires to prosecute, by virtue of the powers granted to him by 36-1-20 NMSA 1978 to appear in such courts. 1965 Op. Att'y Gen. No. 65-127.

District attorney was not vested with power to enforce directive requiring all complaints against offenders booked into McKinley county jail for violation of petty misdemeanor statute to be filed by sheriff or state police in justice of the peace court (now magistrate courts) located in county courthouse in order to eliminate time-consuming and expensive transportation of offenders to one of the other justice of the peace courts of the county. 1965 Op. Att'y Gen. No. 65-127.

Public Records Act. — District attorneys are state officers and office of district attorney falls within broad definition of "agency" as used in 14-3-1 NMSA 1978 of the Public Records Act; therefore, the records of the district attorney's office are subject to provisions of the act for purposes of care, custody, preservation and disposition. 1975 Op. Att'y Gen. No. 75-36.

Compensation. — District attorneys whose terms of office were to expire on December 31, 1972, were to continue until that time to receive salary prescribed in former 13-8-5, 1953 Comp., which had been repealed by Laws 1972, ch. 97, § 71, a portion of the Children's Code, as the section enacted in its stead contained no salary provision for a district attorney's service as children's court attorney. 1972 Op. Att'y Gen. No. 72-45.

Election by district electorate. — There is no language used in the constitution evincing any intention on the part of the constitutional convention to permit a district attorney to be elected by any group of voters more than or less than the district electorate of the district in which he is to serve. 1960 Op. Att'y Gen. No. 60-03.

Candidate for district attorney must run in all counties of the district. 1960 Op. Att'y Gen. No. 60-03.

Probate judge as assistant district attorney. — The duly elected probate judge for Colfax county may be appointed as assistant district attorney with limited authority only. 1958 Op. Att'y Gen. No. 58-237.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Prosecuting Attorneys §§ 1, 5 to 8.

Disbarment or suspension of attorney because of misconduct of, as prosecuting attorney, 9 A.L.R. 197, 43 A.L.R. 109, 55 A.L.R. 1375.

Contract by attorney to prosecute or assist in prosecution of criminal case on contingent fee, validity of, 11 A.L.R. 1192.

Incompatibility of offices of district attorney and captain of volunteers, 26 A.L.R. 145, 132 A.L.R. 254, 147 A.L.R. 1419, 148 A.L.R. 1399, 150 A.L.R. 1444.

Taxes, power of district attorney to remit, release or compromise, 99 A.L.R. 1068, 28 A.L.R.2d 1425.

Court's power to remove district attorney, 118 A.L.R. 173.

Prosecution for criminal offenses, duty and discretion of district or prosecuting attorney as regards, 155 A.L.R. 10.

Power of assistant or deputy prosecuting or district attorney to file information, or to sign or prosecute it in his own name, 80 A.L.R.2d 1067.

Constitutionality and construction of statute against public attorney representing private person in civil action, 82 A.L.R.2d 774.

Constitutionality and construction of statute prohibiting a prosecuting attorney from engaging in the private practice of law, 6 A.L.R.3d 562.

Disqualification or recusal of prosecuting attorney because of relationship with alleged victim or victim's family, 12 A.L.R.5th 909.

27 C.J.S. District and Prosecuting Attorneys §§ 1 to 10.