House Bill text for HB1296

HOUSE BILL 1296

48th legislature - STATE OF NEW MEXICO - first session, 2007

INTRODUCED BY

Antonio "Moe" Maestas

AN ACT

RELATING TO LAW ENFORCEMENT; PROVIDING FOR PRIMARY JURISDICTION OF THE ATTORNEY GENERAL TO INVESTIGATE AND PROSECUTE CERTAIN CRIMES COMMITTED BY OFFICERS OF THE EXECUTIVE AND JUDICIAL DEPARTMENTS ELECTED ON A STATEWIDE BASIS; PROVIDING FOR CONCURRENT JURISDICTION FOR THE ATTORNEY GENERAL AND DISTRICT ATTORNEYS TO INVESTIGATE AND PROSECUTE CERTAIN CRIMES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 4-38-29 NMSA 1978 (being Laws 1897, Chapter 60, Section 15, as amended) is amended to read:

"4-38-29. LIABILITY FOR MONEY WRONGFULLY PAID OUT.--[Sec. 155.]

A. Any county commissioner who shall vote to approve any account or order any money paid to any officer or individual, except as provided by law, [shall be deemed] is guilty of a misdemeanor and upon conviction thereof shall be fined in a sum not exceeding five hundred dollars [and] ($500). The money [so] illegally ordered to be paid shall be recovered in a suit brought in the name of the county on [his] the commissioner's official bond.

B. The attorney general and the district attorney in the county of jurisdiction have concurrent jurisdiction to enforce the provisions of this section."

Section 2. Section 6-6-10 NMSA 1978 (being Laws 1941, Chapter 190, Section 5, as amended) is amended to read:

"6-6-10. VIOLATION OF EXPENSE LIMIT--PENALTY.--[Any]

A. A member of [any] a board of county commissioners, [or of any] a local school board or [of any] the governing board or council of any municipality or any other official who [shall violate] violates the provisions of Sections 6-6-7 through 6-6-10 NMSA 1978 [shall be deemed] is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than five hundred dollars ($500) or by imprisonment for not more than six months or both and, upon conviction under [the] this section, the position shall be declared vacant. Any official whose duty it is to allow claims and issue warrants therefor who issues warrants or evidences of indebtedness contrary to the provisions of Sections 6-6-7 through 6-6-10 NMSA 1978 shall be liable to [his] the official's respective county, school district or municipality for [such] the violations, and recovery may be made against the bondsmen of [such] that official.

B. The attorney general and the district attorney in the county of jurisdiction have concurrent jurisdiction to enforce the provisions of this section."

Section 3. Section 6-10-53 NMSA 1978 (being Laws 1923, Chapter 76, Section 31) is amended to read:

"6-10-53. BRIBERY--PENALTY.--

A. Any person [or persons] who [shall] directly or indirectly [pay] pays or [give] gives or [offer] offers to pay or give to any one holding the office of state treasurer or the office of treasurer of any county, city or town or board in control in this state or to any person [or persons] under [such] those officers' direction for the profit of any such officer or other person [or persons] any reward or compensation either in money or other property or thing of value in consideration of a loan to or deposit with any such person [or persons or body of persons], association or corporation of any public [monies] money in the custody or under the control of [such] the state treasurer or the treasurer of any county, city or town or board in control or in consideration of any other agreement or arrangement touching the use of [such monies] the money or any part thereof for any purpose not authorized by law [shall be deemed] is guilty of a felony and upon conviction thereof shall be punished by a fine of not more than five thousand dollars ($5,000) or by imprisonment for not more than ten years or both.

B. Except as provided in Subsection C of this section, the attorney general and the district attorney in the county of jurisdiction have concurrent jurisdiction to enforce the provisions of this section.

C. The attorney general has primary jurisdiction and is authorized to investigate and prosecute, when appropriate, officers of the executive and judicial departments elected on a statewide basis who violate the provisions of this section; except if the officer is the attorney general, the governor shall appoint a district attorney or special prosecutor who may investigate and prosecute the attorney general. Upon the failure or refusal of the attorney general to act pursuant to this subsection, the district attorney in the county where the officer resides or where the violation occurred may investigate and prosecute an officer for a violation."

Section 4. [NEW MATERIAL] MISUSE OF PUBLIC MONEY--VIOLATIONS BY STATEWIDE ELECTED OFFICIALS--PRIMARY JURISDICTION OF ATTORNEY GENERAL.--

B. The attorney general has primary jurisdiction and is authorized to investigate and prosecute, when appropriate, officers of the executive and judicial departments elected on a statewide basis who violate the provisions of Article 8, Section 4 of the constitution of New Mexico; except if the officer is the attorney general, the governor shall appoint a district attorney or special prosecutor who may investigate and prosecute the attorney general. Upon the failure or refusal of the attorney general to act pursuant to this subsection, the district attorney in the county where the officer resides or where the violation occurred may investigate and prosecute an officer for a violation.

Section 5. Section 8-5-3 NMSA 1978 (being Laws 1933, Chapter 21, Section 3) is amended to read:

"8-5-3. ACTION IN CIVIL AND CRIMINAL CASES.--[That]

A. 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, or as otherwise provided by law, the attorney general [be, and he] is [hereby] authorized to act on behalf of [said] that county, state or [any] department [thereof] if after a thorough investigation such action is ascertained to be advisable by the attorney general [provided that].

B. 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 thereof may be interested. After such investigation, the attorney general [be, and he] is [hereby] authorized to take such action as in [his] the attorney general's opinion conditions warrant. The cost of [such] the investigation shall be paid out of the general fund of the county [wherein such] where the investigation [shall have been] was made, and the costs of any prosecution arising out of [such] the investigation shall be paid as are the costs in cases prosecuted by district attorneys."

Section 6. Section 10-16-14 NMSA 1978 (being Laws 1967, Chapter 306, Section 14, as amended) is amended to read:

"10-16-14. ENFORCEMENT PROCEDURES--COMPLAINTS.--

A. The secretary of state may refer suspected violations of the Governmental Conduct Act to the attorney general, district attorney or appropriate state agency or legislative body for enforcement. If a suspected violation involves the office of the secretary of state, the attorney general may enforce that act. If a suspected violation involves the office of the attorney general, a district attorney may enforce that act.

B. Violation of the provisions of the Governmental Conduct Act by any legislator is grounds for discipline by the appropriate legislative body.

C. If the attorney general determines that there is sufficient cause to file a complaint against a public officer removable only by impeachment, [he] the attorney general shall refer the matter to the house of representatives of the legislature. If within thirty days after the referral the house of representatives has neither formally declared that the charges contained in the complaint are not substantial nor instituted hearings on the complaint, the attorney general shall make public the nature of the charges, but [he] the attorney general shall make clear that the merits of the charges have never been determined. Days during which the legislature is not in session shall not be included in determining the thirty-day period.

D. Violation of the provisions of the Governmental Conduct Act by any public officer or employee, other than those covered by Subsection C of this section, is grounds for discipline, including dismissal, demotion or suspension. Complaints against executive branch employees may be filed with the agency head and reviewed pursuant to the procedures provided in the Personnel Act. Complaints against legislative branch employees may be filed with and reviewed pursuant to procedures adopted by the New Mexico legislative council. Complaints against judicial branch employees may be filed and reviewed pursuant to the procedures provided in the judicial personnel rules.

E. [Subject to the provisions of] Except as otherwise provided in this section, the Governmental Conduct Act may be enforced by the attorney general [Except as regards legislators or statewide elected officials] or a district attorney in the county where a person resides or where a violation occurred [may also enforce that act]. Enforcement actions may include seeking civil injunctive or other appropriate orders."

Section 7. Section 10-16-17 NMSA 1978 (being Laws 1993, Chapter 46, Section 37) is amended to read:

"10-16-17. CRIMINAL PENALTIES.--

A. Unless specified otherwise in the Governmental Conduct Act, any person who knowingly and willfully violates any of the provisions of that act is guilty of a misdemeanor and shall be punished by a fine of not more than one thousand dollars ($1,000) or by imprisonment for not more than one year or both. Nothing in the Governmental Conduct Act shall preclude criminal prosecution for bribery or other provisions of law set forth in the constitution of New Mexico or by statute.

B. The attorney general and the district attorney in the county of jurisdiction have concurrent jurisdiction to enforce the provisions of the Governmental Conduct Act."

Section 8. Section 13-1-199 NMSA 1978 (being Laws 1984, Chapter 65, Section 172) is amended to read:

"13-1-199. MISDEMEANOR.--

A. Any business or person [which] that violates the Procurement Code is guilty of a misdemeanor.

B. Except as provided in Subsection C of this section, the attorney general and the district attorney in the county of jurisdiction have concurrent jurisdiction to enforce the criminal provisions of the Procurement Code.

C. The attorney general has primary jurisdiction and is authorized to investigate and prosecute, when appropriate, officers of the executive and judicial departments elected on a statewide basis who violate the provisions of the Procurement Code; except if the officer is the attorney general, the governor shall appoint a district attorney or special prosecutor who may investigate and prosecute the attorney general. Upon the failure or refusal of the attorney general to act pursuant to this section, the district attorney in the county where the officer resides or where the violation occurred may investigate and prosecute an officer for a violation."

Section 9. A new section of Chapter 30, Article 23 NMSA 1978 is enacted to read:

"[NEW MATERIAL] VIOLATIONS BY STATEWIDE ELECTED OFFICIALS--PRIMARY JURISDICTION OF ATTORNEY GENERAL.--

A. Except as provided in Subsection B of this section, the attorney general and the district attorney in the county of jurisdiction have concurrent jurisdiction to enforce the provisions of Sections 30-23-1 through 30-23-6 NMSA 1978. B. The attorney general has primary jurisdiction and is authorized to investigate and prosecute, when appropriate, officers of the executive and judicial departments elected on a statewide basis who violate any of the provisions of Sections 30-23-1 through 30-23-6 NMSA 1978; except if the officer is the attorney general, the governor shall appoint a district attorney or special prosecutor who may investigate and prosecute the attorney general. Upon the failure or refusal of the attorney general to act pursuant to this section, the district attorney in the county where the officer resides or where the violation occurred may investigate and prosecute an officer for a violation."

Section 10. A new section of Chapter 30, Article 24 NMSA 1978 is enacted to read:

"[NEW MATERIAL] VIOLATIONS BY STATEWIDE ELECTED OFFICIALS--PRIMARY JURISDICTION OF ATTORNEY GENERAL.--

B. The attorney general has primary jurisdiction and is authorized to investigate and prosecute, when appropriate, officers of the executive and judicial departments elected on a statewide basis who violate any of the provisions of Sections 30-24-1 through 30-24-3.1 NMSA 1978 or Article 4, Sections 39 and 40 of the constitution of New Mexico; except if the officer is the attorney general, the governor shall appoint a district attorney or special prosecutor who may investigate and prosecute the attorney general. Upon the failure or refusal of the attorney general to act pursuant to this section, the district attorney in the county where the officer resides or where the violation occurred may investigate and prosecute an officer for a violation."

Section 11. Section 30-26-1 NMSA 1978 (being Laws 1963, Chapter 303, Section 26-1) is amended to read:

"30-26-1. TAMPERING WITH PUBLIC RECORDS.--

A. Tampering with public records consists of:

[A.] (1) knowingly altering any public record without lawful authority;

[B.] (2) any public officer or public employee knowingly filing or recording any written instrument, judicial order, judgment or decree in a form other than as the original thereof in fact appeared;

[C.] (3) any public officer or public employee knowingly falsifying or falsely making any record or file, authorized or required by law to be kept;

[D.] (4) any public officer or public employee knowingly issuing or causing to be issued any false or untrue certified copy of a public record; or

[E.] (5) knowingly destroying, concealing, mutilating or removing without lawful authority [and] any public record or public document belonging to or received or kept by any public authority for information, record or pursuant to law.

B. Whoever commits tampering with public records is guilty of a fourth degree felony.

C. Except as provided in Subsection D of this section, the attorney general and the district attorney in the county of jurisdiction have concurrent jurisdiction to enforce the provisions of this section.

D. The attorney general has primary jurisdiction and is authorized to investigate and prosecute, when appropriate, officers of the executive and judicial departments elected on a statewide basis who violate the provisions of this section; except if the officer is the attorney general, the governor shall appoint a district attorney or special prosecutor who may investigate and prosecute the attorney general. Upon the failure or refusal of the attorney general to act pursuant to this section, the district attorney in the county where the officer resides or where the violation occurred may investigate and prosecute an officer for a violation."

Section 12. A new section of Chapter 30, Article 41 NMSA 1978 is enacted to read:

"[NEW MATERIAL] VIOLATIONS BY STATEWIDE ELECTED OFFICIALS--PRIMARY JURISDICTION OF ATTORNEY GENERAL.--

B. The attorney general has primary jurisdiction and is authorized to investigate and prosecute, when appropriate, officers of the executive and judicial departments elected on a statewide basis who violate any of the provisions of Sections 30-41-1 and 30-41-2 NMSA 1978; except if the officer is the attorney general, the governor shall appoint a district attorney or special prosecutor who may investigate and prosecute the attorney general. Upon the failure or refusal of the attorney general to act pursuant to this section, the district attorney in the county where the officer resides or where the violation occurred may investigate and prosecute an officer for a violation."

Section 13. Section 30-42-5 NMSA 1978 (being Laws 1980, Chapter 40, Section 5) is amended to read:

"30-42-5. ENFORCEMENT AUTHORITY.--

A. Except as provided in Subsection B of this section, the attorney general and the district attorneys of New Mexico shall [each] have [authority] concurrent jurisdiction to enforce the criminal provisions of the Racketeering Act by initiating investigations, assisting grand juries, obtaining indictments, filing informations and complaints and prosecuting criminal cases.

B. The attorney general has primary jurisdiction and is authorized to investigate and prosecute, when appropriate, officers of the executive and judicial departments elected on a statewide basis who violate any of the provisions of the Racketeering Act; except if the officer is the attorney general, the governor shall appoint a district attorney or special prosecutor who may investigate and prosecute the attorney general. Upon the failure or refusal of the attorney general to act pursuant to this section, the district attorney in the county where the officer resides or where the violation occurred may investigate and prosecute an officer for a violation."

Section 14. Section 30-51-1 NMSA 1978 (being Laws 1998, Chapter 113, Section 1) is amended to read:

"30-51-1. SHORT TITLE.--[Sections 1 through 5 of this act] Chapter 30, Article 51 NMSA 1978 may be cited as the "Money Laundering Act"."

Section 15. A new section of the Money Laundering Act is enacted to read:

"[NEW MATERIAL] VIOLATIONS BY STATEWIDE ELECTED OFFICIALS--PRIMARY JURISDICTION OF ATTORNEY GENERAL.--

A. Except as provided in Subsection B of this section, the attorney general and the district attorney in the county of jurisdiction have concurrent jurisdiction to enforce the criminal provisions of the Money Laundering Act.

B. The attorney general has primary jurisdiction and is authorized to investigate and prosecute, when appropriate, officers of the executive and judicial departments elected on a statewide basis who violate any of the criminal provisions of the Money Laundering Act; except if the officer is the attorney general, the governor shall appoint a district attorney or special prosecutor who may investigate and prosecute the attorney general. Upon the failure or refusal of the attorney general to act pursuant to this section, the district attorney in the county where the officer resides or where the violation occurred may investigate and prosecute an officer for a violation."

Section 16. Section 36-1-18 NMSA 1978 (being Laws 1909, Chapter 22, Section 2, as amended) is amended to read:

"36-1-18. DUTIES OF DISTRICT ATTORNEY.--

A. Each district attorney shall:

(1) prosecute and defend for the state in all courts of record of the counties of [his] the district attorney's district all cases, criminal and civil, in which the state or any county in [his] the district may be a party or may be interested, except in those cases where the attorney general investigates and prosecutes pursuant to the attorney general's concurrent or primary jurisdictional authority;

(2) represent the county before the board of county commissioners of any county in [his] the district attorney's district in all matters before the board whenever requested to do so by the board, and [he] the district attorney may appear before the board when sitting as a board of equalization without request;

(3) advise all county and state officers whenever requested; and

(4) represent any county in [his] the district attorney's district in all civil cases in which the county may be concerned in the supreme court or court of appeals, but not in suits brought in the name of the state.

B. A district attorney may contract with an Indian nation, tribe or pueblo within the boundaries of the district attorney's judicial district for the purpose of authorizing the district attorney or [his] the district attorney's staff to:

(1) serve as a tribal prosecutor; or

(2) prosecute alleged violations of tribal codes by tribal members in tribal courts."

- 16 -