Each district attorney may, when he cannot prosecute a case for ethical reasons or other good cause, appoint a practicing member of the bar of this state to act as special assistant district attorney. Any person so appointed shall have authority to act only in the specific case or matter for which the appointment was made. An appointment and oath shall be required of special assistant district attorneys in substantially the same form as that required for assistant district attorneys in Section 36-1-2 NMSA 1978.
History: 1978 Comp., § 36-1-23.1, enacted by Laws 1984, ch. 109, § 2.
ANNOTATIONSSubstantial compliance sufficient. — Substantial compliance with this section, not strict compliance, is all that is required, and there was substantial compliance in this case since the appointment of a district attorney as a special prosecutor was placed in writing and filed under a miscellaneous file number, he was administered the oath, and he did not act outside the bounds of his authority. State v. Cherryhomes, 1996-NMSC-072, 122 N.M. 687, 930 P.2d 1139.
Where local district attorney available. — Attorney who was part of the Medicaid Providers Fraud Control Unit and was appointed a special assistant district attorney could not prosecute a criminal sexual penetration case for a local district attorney, where the state conceded there was no reason why the district attorney could not have prosecuted the case. State v. Hollenbeck, 1991-NMCA-060, 112 N.M. 275, 814 P.2d 143.
Delegation of authority to assistant. — This section did not preclude a district attorney appointed as a special prosecutor from delegating responsibilities associated with his appointment to an assistant district attorney acting under his supervision; therefore, the assistant had the authority of a special prosecutor, and a separate appointment was not required. State v. Cherryhomes, 1996-NMSC-072, 122 N.M. 687, 930 P.2d 1139.
Power and authority of a special prosecutor. — A properly appointed special prosecutor is given all the authority and duties of the appointing district attorney to prosecute the case for which that special prosecutor was appointed, including the authority to name another special prosecutor if unable to proceed for an ethical reason or other good cause. State v. Surratt, 2016-NMSC-004, rev'g 2015-NMCA-039, 346 P.3d 419.
Where defendant was charged with criminal sexual penetration of a minor, his claim, that the district attorney serving as special prosecutor at his second trial lacked the authority to prosecute the case because his appointment by the first special prosecutor was without legal effect, was properly denied by the district court. The lawful appointment of the first special prosecutor vested her with all the powers and duties of the original district attorney to investigate and prosecute the case, including the authority to appoint another special prosecutor pursuant to 36-1-23.1 NMSA 1978. State v. Surratt, 2016-NMSC-004, rev'g 2015-NMCA-039, 346 P.3d 419.
Special prosecutor vested with limited authority. — A special prosecutor is vested with limited authority to act only in the specific case or matter for which the appointment was made, and does not assume the authority with which the appointing district attorney was vested by virtue of having been elected to the office; a special prosecutor appointed to prosecute a criminal case, therefore, does not have the authority to appoint another special prosecutor. State v. Surratt, 2015-NMCA-039, cert. granted, 2015-NMCERT-002.
Where defendant's motion for re-trial was granted after being convicted in his first trial, which was prosecuted by a special prosecutor appointed by the district attorney of the judicial district in which the case originated, and where defendant's second trial was prosecuted by a second special prosecutor appointed by the first special prosecutor, the first special prosecutor lacked lawful authority to appoint a second prosecutor, and the second special prosecutor was without lawful authority to prosecute the case against defendant, and without lawful authority to prosecute the case, the district court lacked jurisdiction over defendant's re-trial. State v. Surratt, 2015-NMCA-039, cert. granted, 2015-NMCERT-002.