THE PURPOSE OF A PENAL BOND BINDING A PUBLIC OFFICE HOLDER TO THE PROMISES CONTAINED IN THE OATH OF OFFICE
NMSA 10-2-9: Each and every person who may hereafter be elected or appointed to office in New Mexico, is required by law to give bond, shall file the same for record before entering upon the discharge of the duties of the office.
All persons elected or appointed to a state public office are mandated, within 30 days, to take the oath of office prescribed under Article XX, Section 1, Constitution of New Mexico, and as soon after doing so within the 30 day grace period, they must give a signed penal bond binding them to the promises contained in the oath taken; otherwise, the office becomes vacant. At the end of the 30 day grace period, failure to complete any of the required steps necessary to enter the office prevents one’s entry into the office and prohibits one from discharging the duties of that office and denies one from being impeached from office. Being bound by oath is mandated for all public officers, both state and federal, by Article VI, Clause 3, Constitution of the United States.
Upon giving a signed penal bond and upon having evidence of both the oath taken and the bond given is recorded among the Records in the Office of the Secretary of State, the person elected or appointed to public office then becomes eligible to take the office to which they were appointed or elected and thereafter, and only thereafter, to discharge the duties of that office.
By taking the oath of office, one initiates a common law contract with the public at-large. Upon presenting the evidence of the oath taken and the signed penal bond given for recording, the oath taker becomes bound by the penal bond to the promises contained within the oath. At that point, the contract is consummated since the bond recorded becomes the oath taker’s consideration to the general public, which is then matched by a grant of the public’s trust as their consideration for the contract, and that trust is exercised only from within the office held.
An abuse of office does not withdraw the public trust as the law covering the duties of office applies. Only a failure to keep the promises made upon taking the oath is the essential fact necessary to withdraws the public trust which is accomplished simply by calling the bond from the Office of the Secretary of State with the proof of the breach. The penal bond insurer is then required to pay the value of the bond to the State Treasury. The insurer may then seek relief for having paid off the bond proceeds in a court of law against its offender, the penal bond holder. Upon entering office, the office holder may, at times, abuse the office by a deliberate act at which time the liability insurance coverage for the office, not the person, may compensate the injured party in a tort action.