AGO 07-07.

• Case Date: December 18, 2007
• Court: New Mexico

New Mexico Attorney General Opinions 2007. AGO 07-07. December 18, 2007OPINION OFGARY K. KINGAttorney General Opinion No. 07-07BY: Melanie CarverAssistant Attorney General TO: The Honorable Linda Lopez New Mexico State Senator9132 Suncrest SW Albuquerque, NM 87121 QUESTION: Does the Board of Education of the Albuquerque Public Schools ("APS Board") have authority to create and fund an independent police department without specific legislative authorization? CONCLUSION: Based on our examination of the relevant New Mexico statutes, opinions and case law authorities, and on the information available to us at this time, we conclude that the APS Board does not have the authority to create and fund an independent police department without specific legislative authority. ANALYSIS: The applicable constitutional and statutory provisions give the legislature sole authority to create police departments. Article IV, Section 1 of the New Mexico Constitution vests the legislature with the authority to enact laws necessary for the effective exercise of the powers reserved to it, including the authority to enact "general appropriation laws, laws for the preservation of the public peace, health and safety . . . and for the maintenance of the public schools or state institutions, and local or special laws." In an exercise of its police power, the New Mexico legislature generally limited the power to create police or other law enforcement departments in NMSA 1978, Chapter 29. The legislature restricted the power to appoint peace officers in NMSA 1978, Section 29-1-9, which states in relevant part:

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 do so].

The plain language of the phrase "a person authorized by law" indicates that specific authorization from the legislature is necessary in order to appoint peace officers. According to the rules of statutory construction:

When an act is to be done according to law, or a thing is to be established by law, we all understand that the law intended is a law passed by the legislature, and not by some inferior body acting under powers conferred by the legislature,

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