A. The sheriffs of this state shall be allowed, except from the state or any state agency, the following fees and compensations:
(1) for serving every writ, citation, order, subpoena or summons, not more than forty dollars ($40.00);
(2) for every writ of capias or attachment for each defendant, six dollars ($6.00);
(3) for taking and returning every bond required by law, five dollars ($5.00);
(4) for levying every execution and return of same, six dollars ($6.00);
(5) for making, executing and delivering every sheriff's deed, to be paid by the purchaser, six dollars ($6.00);
(6) for every return of non est inventus, fifty cents ($.50); and
(7) for making every return of any process, order, summons, citation or decree of any court, two dollars ($2.00).
No sheriff shall collect more than one of the fees listed in this subsection, regardless of how many documents may be served upon one or more individuals, when those documents are served at the same time and at the same location.
B. In the service of any subpoena or summons for witnesses, the sheriff shall be allowed compensation of one dollar ($1.00) for each of the witnesses so summoned by the sheriff, notwithstanding that the name of the witness may appear in but one copy of the subpoena or summons.
C. It is the duty of the sheriffs of the state to attend:
(1) the sessions of every district court, which attendance shall be paid in the manner now provided by law;
(2) all sessions of the probate court and sessions of the boards of county commissioners, which attendance shall be paid sheriffs out of the general county funds of the county in which the services were rendered; and
(3) at the trial or hearing before magistrates in felony cases, where the arrest is made by the sheriff, either with or without a warrant, which attendance shall be paid as provided in this section out of the general county funds; but sheriffs shall not be allowed any compensation for attending at the trial of any misdemeanor case before any magistrate unless a sheriff made the arrest in the misdemeanor case.
History: Laws 1895, ch. 35, § 1; C.L. 1897, § 1799; Laws 1907, ch. 19, § 1; 1909, ch. 16, § 1; Code 1915, § 1266; C.S. 1929, § 33-4422; 1941 Comp., § 15-3818; 1953 Comp., § 15-40-18; Laws 1959, ch. 270, § 1; 1976, ch. 51, § 1; 1977, ch. 94, § 1; 1980, ch. 42, § 1; 1985, ch. 120, § 1; 1987, ch. 300, § 1; 1996, ch. 43, § 1; 2008, ch. 65, § 1.
ANNOTATIONSCross references. — For attendance at probate court sessions, see 4-41-13 NMSA 1978.
For commissions and expenses on executions, see 4-41-17 NMSA 1978.
For reimbursement of peace officers for mileage traveled by privately owned conveyances in serving process, see 4-41-19 NMSA 1978.
For payment of per diem expenses of sheriffs, deputy sheriffs and guards for serving process and other official business, see 4-44-18 NMSA 1978.
For collection and disposition of fees, commissions, mileage and per diem, see 4-44-28, 4-44-29 NMSA 1978.
For compensation for collection of unemployment compensation contributions, see 51-1-36 NMSA 1978.
The 2008 amendment, effective July 1, 2008, in Subsection A(1), increased the fee from $30 to $40.
The 1996 amendment, effective May 15, 1996, substituted "thirty dollars ($30.00)" for "fifteen dollars ($15.00)" in Subsection A(1) and substituted "and" for "or" at the end of Subsection A(6).
Collection and disposition of fees generally. — The first seven items of Subsection A, providing fees for the service and return of process, are to be collected by the sheriff from the litigants in all civil cases, and are to be paid to the treasurer under 4-44-21, 4-44-28 NMSA 1978. 1937 Op. Att'y Gen. No. 37-1786.
Provision pertaining to taking and returning bond applies to both civil and criminal cases. 1945 Op. Att'y Gen. No. 45-4675.
The sheriff is chargeable with the fee paid for the execution of the death penalty, even though it does come from the state and not the county. 1917 Op. Att'y Gen. No. 17-2013 (rendered under prior law).
Fees assessable against person under arrest and in jail. — No cost may be assessed for the service of warrant of arrest on an individual who is already under arrest and held in jail. This cost is unnecessary and unreasonable and is not incidental to the prosecution. The transportation fee for carrying the defendant between the jail and the court for trial may be properly assessed against him, if convicted. There may be instances where the defendant is transported between the jail and the court for unnecessary and unreasonable purposes, and in that event, the defendant could not be forced to pay the costs. This is a matter of fact and not subject to an unalterable rule. The carrying out of the order of the court, including a commitment order, is a fee which may properly be assessed against the convicted defendant. 1960 Op. Att'y Gen. No. 60-149.
Mileage fees may be imposed. — A sheriff and his deputies are required to collect certain fees under this section from private individuals for performing prescribed services, and in connection with the performance of such duties a mileage fee may be imposed. Mileage fees are required under 4-44-28 NMSA 1978 to be deposited into the county treasury, and pursuant to 4-44-31 NMSA 1978, they are credited to the county salary fund (now county general fund). 1963 Op. Att'y Gen. No. 63-111.
The state and its agencies are required to pay the statutory fees for service of process. 1979 Op. Att'y Gen. No. 79-29.
Sheriff not required to be courthouse security guard. — Subsection C only requires the sheriff's attendance at trials and hearings of the court and does not require his presence as a round-the-clock security guard for the entire courthouse. 1979 Op. Att'y Gen. No. 79-04.
Law reviews. — For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 70 Am. Jur. 2d Sheriffs, Police, and Constables §§ 68 to 75, 77 to 81, 83, 84, 86 to 89.
80 C.J.S. Sheriffs and Constables § 474.