No sheriff of a county, mayor of a city or other person authorized by law to appoint special deputy sheriffs, marshals, policemen or other peace officers in the state of New Mexico to preserve the public peace and to prevent and quell public disturbances shall appoint as such special deputy sheriff, marshal, policeman or other peace officer any person who shall not be a citizen of the United States of America. No person shall assume or exercise the functions, powers, duties and privileges incident and belonging to the office of special deputy sheriff, marshal, policeman or other peace officer without first having received an appointment in writing from a person authorized by law to appoint special deputy sheriffs, marshals, policemen or other peace officers; provided that nothing in this section shall apply to lawfully appointed United States marshals or to deputies of those marshals or to railroad peace officers appointed pursuant to Section 63-2-18 NMSA 1978 in the performance of their duties as peace officers.

This section shall not apply in times of riot or unusual disturbance and when so declared by the public proclamation of the governor of the state.

History: Laws 1891, ch. 60, §§ 1, 2; C.L. 1897, §§ 743, 744; Code 1915, § 1256; C.S. 1929, § 33-4412; 1941 Comp., § 40-109; 1953 Comp., § 39-1-9; 1979, ch. 98, § 1; 2006, ch. 30, § 2.

Compiler's notes. — The first paragraph of this section derives from Laws 1891, ch. 60, § 1, and the second paragraph was a proviso clause of § 2 of the same act. The first part of Laws 1891, ch. 60, § 2, relating to impersonating a peace officer, formerly compiled as 40-16-1, 1953 Comp., was repealed by Laws 1963, ch. 303, § 30-1.

Cross references. — For deputy sheriff, appointment and qualifications, see 4-41-5, 4-41-8, 4-41-10 NMSA 1978.

The 2006 amendment, effective March 2, 2006, deleted references to special constables; required that appointed peace officers be citizens of the United States of America; and provided that appointed peace officers be appointed by a person authorized by law to appoint such officers.

Legislature may set restrictions upon public employees. — Nothing in the constitution prevents the legislature setting such restrictions as it sees fit upon public employees. The legislature has exercised its power in Section 10-1-5 NMSA 1978 (repealed) over all public employees, and in this section and Section 4-41-10 NMSA 1978, additional requirements are stated for deputy sheriffs and other peace officers. 1960 Op. Att'y Gen. No. 60-222.

Wildlife law enforcement officers can be required to hold New Mexico and United States citizenship. 1979 Op. Att'y Gen. No. 79-30.

At common law sheriff could appoint peace officers. — At common law a sheriff could appoint an undersheriff and as many general or special deputies as the public service may have required. 1957 Op. Att'y Gen. No. 57-83.

Sheriff can commission officers. — A sheriff can commission as a special deputy sheriff a full-time law enforcement officer employed by a municipality, the Navajo tribe or the federal government. The applicants, of course, would have to secure the appointment from the sheriff of the county in which they wish to act and qualify in accordance with this section and Sections 4-41-8, 4-41-10 NMSA 1978, and any other statutes of the state of New Mexico pertaining to the qualification of deputy sheriffs. 1957 Op. Att'y Gen. No. 57-83.

In absence of emergency, patrol member must be furnished request. — When no actual emergency exists, a member of the mounted patrol whose assistance is requested by the state police must be furnished the request in writing, signed by the officer making the request. 1960 Op. Att'y Gen. No. 60-239.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 70 Am. Jur. 2d Sheriffs, Police, and Constables §§ 1 to 5, 8, 10, 13.

Power to appoint public officer for term commencing at or after expiration of term of appointing officer or body, 75 A.L.R.2d 1277.

Validity, construction and application of regulation regarding outside employment of government employees or officers, 94 A.L.R.3d 1230.

Validity, construction, and application of regulations regarding outside employment of governmental employees of officers, 62 A.L.R.5th 671.

63 C.J.S. Municipal Corporations § 478 et seq.; 80 C.J.S. Sheriffs and Constables §§ 3, 22, 37.