AGO 08-04.

• Case Date: July 28, 2008
• Court: New Mexico

New Mexico Attorney Gen eral Opinions 2008. AGO 08-04. July 28, 2008Opinion No. 08-04OPINION OF GARY K. KING Attorney GeneralBY: Andrew S. Montgomery Assistant Attorney General TO: The Honorable Floyd D. HaakeFifth Judicial District Attorney102 North Canal Street, Suite 200 Carlsbad, NM 88220-5750 Questions:1.

May a district attorney pursue a civil damages action pursuant to NMSA 1978, Section 17-2-26 against a person who has already been convicted and sentenced in a criminal prosecution based on the same underlying conduct?

2.

May a district attorney use funds appropriated pursuant to NMSA 1978, Section 36-1-8(B) to pay litigation expenses incurred in a civil damages action?...

QUESTIONS: 1.

May a district attorney pursue a civil damages action pursuant to NMSA 1978, Section 17-2-26 against a person who has already been convicted and sentenced in a criminal prosecution based on the same underlying conduct?

2.

May a district attorney use funds appropriated pursuant to NMSA 1978, Section 36-1-8(B) to pay litigation expenses incurred in a civil damages action?

CONCLUSIONS: 1.

Yes. A district attorney has the authority and duty to prosecute civil as well as criminal cases in which the state is a party and which arise in his or her district under the game and fish laws. Double jeopardy prohibitions do not inhibit the district attorney from bringing a civil action for damages pursuant to NMSA 1978, Section 17-2-26 against a person previously convicted and sentenced for a criminal offense arising out of the same conduct in violation of the game and fish laws, because the damages authorized by Section 17-2-26 are remedial rather than punitive and serve to compensate the state for the loss of unique public resources.

2.

Yes. Civil litigation expenses, like most other expenses incurred by a district attorney, are paid from state funds appropriated in accordance with a budget approved by the Department of Finance and Administration.

FACTS: The Department of Game and Fish has requested the District Attorney for the Fifth Judicial District to commence a civil action for damages against a person charged with illegally taking a trophy animal. The defendant in the prospective civil action has already pleaded guilty and has been fined for one or more criminal offenses based on the same taking of a trophy animal.ANALYSIS:1. Civil Damages Action Based on Same Conduct Underlying a Criminal Prosecution A. Statutory Overview The New Mexico Constitution provides that each district attorney "shall perform such duties ... as may be prescribed by law." N.M. Const. art. VI, § 24. Among the duties that the legislature has prescribed for district attorneys is that each shall "prosecute and defend for the state in all courts of record of the counties of his district all cases, criminal and civil, in which the state or any county in his district may be a party or may be interested." NMSA 1978, § 36-1-18(A)(1) (1909, as amended through 2001). Beyond this general duty, the legislature has more specifically provided in Chapter 17, the game and fish statutes, that each district attorney shall prosecute criminal and civil actions arising under those particular statutes:

It shall be the duty of each of the district attorneys in this state to prosecute and defend for the state in all courts of the county or counties in their respective districts, all causes, criminal and civil, arising under the provisions of this chapter, in which the state may be a party or interested or concerned.

NMSA 1978, § 17-2-27 (1912). Among the causes arising under Chapter 17 is a civil action in the name of the state to recover damages for the unlawful taking of a game animal:

The director of the department of game and fish, or any other officer charged with enforcement of the laws relating to game and fish if so directed by the director, may bring a civil action in the name of the state against any person unlawfully wounding or killing, or unlawfully in possession of, any game quadruped, bird or fish, or part thereof and recover judgment for the following minimum sums as damages for the taking, killing or injuring [of enumerated game animals] ....

NMSA 1978, § 17-2-26(A) (1912, as amended through 2006); see also id.§ 17-2-26(D) (confirming that judgment shall not be for less than the statutory minimum sums). Over and above the statutory minimum damages set for the unlawful taking of game animals, Section 17-2-26 directs the State Game Commission to establish sums of damages for the taking of designated trophy animals. Id.§ 17-2-26(B). Regulations promulgated under Section 17-2-26 assign dollar values to enumerated trophy animals, varying by criteria such as size and number of antler points, which are used to determine civil damages liability. See 19.30.11.1 - 19.30.11.10 NMAC. The regulations provide that in case of a dispute regarding the value of a trophy animal, an expert scorer at Safari Club International will score the animal and provide documented findings to the Department of Game and Fish and the defendant. See 19.30.11.7(B) NMAC. Section 17-2-26(C) states explicitly that the damages it authorizes are intended to be compensatory and over and beyond any criminal fines:

Damages recovered pursuant to this section are intended to compensate the state for the loss of unique public resources and shall not be limited or reduced by the extent of fines assessed pursuant to any criminal statute. The department of game and fish shall not award or issue a license, permit or certificate to a debtor owing damages pursuant to this section until the judgment has been paid in full to the department.

All moneys collected or received under state laws for the protection and propagation of game and fish "shall be paid over to the state treasurer to the credit of the game protection fund, unless otherwise provided by law, and the fund, including all earned income therefrom, shall not be transferred to another fund." NMSA 1978, § 17-1-14(A) (1921, as amended through 2005). Section 17-2-26(D) provides that an "action for damages may be joined with an action for possession, and recovery may be had for the possession as well as the damages." Statutory provisions apart from Section 17-2-26 impose various...