Chapter 449 Oregon Laws 2003
AN ACT
HB 2074
Relating to public defense services; creating new provisions; amending ORS 42.125, 84.064, 135.050, 135.055, 135.705, 137.769, 138.500, 138.590, 151.213, 151.216, 151.219, 151.505, 161.346, 161.665, 171.133, 184.473, 190.490, 279.545, 279.710, 279.828, 283.110, 291.002, 291.011, 291.030, 291.045, 293.300, 293.590, 293.875, 419A.211, 419B.195, 419B.198, 419B.201, 419B.205, 419C.200, 419C.203, 419C.206 and 419C.245 and section 1, chapter 937, Oregon Laws 2001; and declaring an emergency.
Be It Enacted by the People of the State of
Oregon:
SECTION 1. ORS 151.216 is amended to read:
151.216. (1) The Public Defense Services Commission shall:
(a) Plan for the establishment of a public defense system that ensures the provision of public defense services in the most cost-efficient manner consistent with the Oregon Constitution, the United States Constitution and Oregon and national standards of justice.
(b) Establish and maintain a public defense system for criminal and probation violation appeals, the responsibility for which is transferred by section 7, chapter 962, Oregon Laws 2001.
(c) Establish an office of public defense services and appoint a public defense services executive director who serves at the pleasure of the commission.
(d) Submit the budget of the commission and the office of public defense services to the Legislative Assembly after the budget is submitted to the commission by the director and approved by the commission. The Chief Justice of the Supreme Court and the chairperson of the commission shall present the budget to the Legislative Assembly.
(e) Review and approve any public defense services contract negotiated by the director before the contract can become effective.
(f) Adopt a compensation plan, classification system and personnel plan for the office of public defense services that [is] are commensurate with other state agencies.
(g) Adopt [rules] policies, procedures, standards and guidelines regarding:
(A) [Procedures for] The contracting of public defense services; and
(B) Any other matters necessary to carry out the duties of the commission.
(2) [Rules] Policies, procedures, standards and guidelines adopted by the commission supersede any conflicting rules, policies or procedures of the Public Defender Committee, State Court Administrator, circuit courts, the Court of Appeals, the Supreme Court and the Psychiatric Security Review Board related to the exercise of the commission’s administrative responsibilities under this section and transferred duties, functions and powers as they occur.
(3) The commission may accept gifts, grants or contributions from any source, whether public or private. However, the commission may not accept a gift, grant or contribution if acceptance would create a conflict of interest. Moneys accepted under this subsection shall be deposited in the Public Defense Services Account created in ORS 151.225 and expended for the purposes for which given or granted.
(4) The commission may not:
(a) Make any decision regarding the handling of any individual case;
(b) Have access to any case file; or
(c) Interfere with the director or any member of the staff of the director in carrying out professional duties involving the legal representation of public defense clients.
SECTION 2. ORS 151.216, as amended by section 106, chapter 962, Oregon Laws 2001, is amended to read:
151.216. (1) The Public Defense Services Commission shall:
(a) Establish and maintain a public defense system that ensures the provision of public defense services in the most cost-efficient manner consistent with the Oregon Constitution, the United States Constitution and Oregon and national standards of justice.
(b) Establish an office of public defense services and appoint a public defense services executive director who serves at the pleasure of the commission.
(c) Submit the budget of the commission and the office of public defense services to the Legislative Assembly after the budget is submitted to the commission by the director and approved by the commission. The Chief Justice of the Supreme Court and the chairperson of the commission shall present the budget to the Legislative Assembly.
(d) Review and approve any public defense services contract negotiated by the director before the contract can become effective.
(e) Adopt a compensation plan, classification system and personnel plan for the office of public defense services that [is] are commensurate with other state agencies.
(f) Adopt [rules] policies, procedures, standards and guidelines regarding:
(A) The determination of financial eligibility of persons entitled to be represented by appointed counsel at state expense;
(B) The appointment of counsel;
(C) The fair compensation of counsel appointed to represent a person financially eligible for appointed counsel at state expense;
(D) Appointed counsel compensation disputes;
(E) Any other costs associated with the representation of a person by appointed counsel in the state courts that are required to be paid by the state under ORS 34.355, 135.055, 138.500, 138.590, [161.365] 161.346, 161.365, 161.385, 419A.211, 419B.201, 419B.208, 419B.518, 419B.908, 419C.206, 419C.209, 419C.408, 426.100, 426.135, 426.250, 426.307, 427.265, 427.295, 436.265 or 436.315 or any other provision of law that expressly provides for payment of such compensation, costs or expenses by the commission;
(F) Professional [qualification standards] qualifications for counsel appointed to represent public defense clients;
(G) Performance [standards] for legal representation;
(H) [Procedures for] The contracting of public defense services; and
(I) Any other matters necessary to carry out the duties of the commission.
(g) Reimburse the State Court Administrator from funds deposited in the subaccount established under ORS 151.225 for the costs of personnel and other costs associated with location of eligibility verification and screening personnel pursuant to ORS 151.489 by the State Court Administrator.
(2) [Rules] Policies, procedures, standards and guidelines adopted by the commission supersede any conflicting rules, policies or procedures of the Public Defender Committee, State Court Administrator, circuit courts, the Court of Appeals, the Supreme Court and the Psychiatric Security Review Board related to the exercise of the commission’s administrative responsibilities under this section and transferred duties, functions and powers as they occur.
(3) The commission may accept gifts, grants or contributions from any source, whether public or private. However, the commission may not accept a gift, grant or contribution if acceptance would create a conflict of interest. Moneys accepted under this subsection shall be deposited in the Public Defense Services Account created in ORS 151.225 and expended for the purposes for which given or granted.
(4) The commission may not:
(a) Make any decision regarding the handling of any individual case;
(b) Have access to any case file; or
(c) Interfere with the director or any member of the staff of the director in carrying out professional duties involving the legal representation of public defense clients.
SECTION 3. ORS 151.219 is amended to read:
151.219. (1) The public defense services executive director shall:
(a) Recommend to the Public Defense Services Commission how to establish and maintain, in a cost-effective manner, the delivery of legal services to persons entitled to, and financially eligible for, appointed counsel at state expense under Oregon statutes, the Oregon Constitution, the United States Constitution and consistent with Oregon and national standards of justice.
(b) Implement and ensure compliance with contracts, policies, procedures, [rules and] standards and guidelines adopted by the commission or required by statute.
(c) Prepare and submit to the commission for its approval the biennial budget of the commission and the office of public defense services.
(d) Negotiate contracts, as appropriate, for providing legal services to persons financially eligible for appointed counsel at state expense. No contract so negotiated is binding or enforceable until the contract has been reviewed and approved by the commission as provided in ORS 151.216.
(e) Employ personnel or contract for services as necessary to carry out the responsibilities of the director and the office of public defense services.
(f) Supervise the personnel, operation and activities of the office of public defense services.
(g) Provide services, facilities and materials necessary for the performance of the duties, functions and powers of the Public Defense Services Commission.
(h) Pay the expenses of the commission and the office of public defense services.
(i) Prepare and submit to the commission [and the Legislative Assembly] an annual report of the activities of the office of public defense services.
(j) Prepare and submit to the Legislative Assembly a biennial report on the activities of the office of public defense services.
[(j)] (k) Provide for legal representation, advice and consultation for the commission, its members, the director and staff of the office of public defense services who require such services or who are named as defendants in lawsuits arising from their duties, functions and responsibilities. If requested by the director, the Attorney General may also provide for legal representation, advice and consultation for the commission, its members, the director and staff of the office of public defense services in litigation.
(2) The director may designate persons as representatives of the director for the purposes of determining and paying bills submitted to the office of public defense services.
SECTION 4. ORS 151.219, as amended by section 106a, chapter 962, Oregon Laws 2001, is amended to read:
151.219. (1) The public defense services executive director shall:
(a) Recommend to the Public Defense Services Commission how to establish and maintain, in a cost-effective manner, the delivery of legal services to persons entitled to, and financially eligible for, appointed counsel at state expense under Oregon statutes, the Oregon Constitution, the United States Constitution and consistent with Oregon and national standards of justice.
(b) Implement and ensure compliance with contracts, policies, procedures, [rules and] standards and guidelines adopted by the commission or required by statute.
(c) Prepare and submit to the commission for its approval the biennial budget of the commission and the office of public defense services.
(d) Negotiate contracts, as appropriate, for providing legal services to persons financially eligible for appointed counsel at state expense. No contract so negotiated is binding or enforceable until the contract has been reviewed and approved by the commission as provided in ORS 151.216.
(e) Employ personnel or contract for services as necessary to carry out the responsibilities of the director and the office of public defense services.
(f) Supervise the personnel, operation and activities of the office of public defense services.
(g) Provide services, facilities and materials necessary for the performance of the duties, functions and powers of the Public Defense Services Commission.
(h) Pay the expenses of the commission and the office of public defense services.
(i) Prepare and submit to the commission [and the Legislative Assembly] an annual report of the activities of the office of public defense services.
(j) Prepare and submit to the Legislative Assembly a biennial report on the activities of the office of public defense services.
[(j)] (k) Provide for legal representation, advice and consultation for the commission, its members, the director and staff of the office of public defense services who require such services or who are named as defendants in lawsuits arising from their duties, functions and responsibilities. If requested by the director, the Attorney General may also provide for legal representation, advice and consultation for the commission, its members, the director and staff of the office of public defense services in litigation.
(2) The director may designate persons as representatives of the director for the purposes of determining and paying bills submitted to the office of public defense services and determining preauthorization [of] for incurring fees and expenses under ORS 135.055.
SECTION 5. ORS 135.055, as amended by section 26, chapter 962, Oregon Laws 2001, is amended to read:
135.055. (1) Counsel appointed pursuant to ORS 135.045 or 135.050 shall be paid fair compensation for representation in the case:
(a) By the county, subject to the approval of the governing body of the county, in a proceeding in a county or justice court.
(b) By the public defense services executive director from funds available for the purpose, in a proceeding in a circuit court.
(2) Except for counsel appointed pursuant to contracts or counsel employed by the public defense services executive director, compensation payable to appointed counsel under subsection (1) of this section:
(a) In a proceeding in a county or justice court [shall] may not be less than $30 per hour.
(b) In a proceeding in a circuit court [shall be] is subject to the applicable compensation established under ORS 151.216.
(3)(a) A person determined to be eligible for appointed counsel is entitled to necessary and reasonable fees and expenses for investigation, preparation and presentation of the case for trial, negotiation and sentencing. The person or the counsel for the person [may] shall upon written request[, which shall not be disclosed to the district attorney prior to conclusion of the case,] secure [approval and] preauthorization [of payment of such] to incur fees and expenses that are not routine to representation but are necessary and [proper] reasonable in the investigation, preparation and presentation of the case, including but not limited to nonroutine travel, photocopying or other reproduction of nonroutine documents, necessary costs associated with obtaining the attendance of witnesses for the defense, investigator fees and expenses, expert witness fees and expenses and fees for interpreters and assistive communication devices necessary for the purpose of communication between counsel and a client or witness in the case. Preauthorization to incur a fee or expense does not guarantee that a fee or expense incurred pursuant to the preauthorization will be determined to be necessary or reasonable when the fee or expense is submitted for payment.
(b) In a county or justice court, the request [shall] must be in the form of a motion to the court. The motion must be accompanied by a supporting affidavit [which] that sets out in detail the purpose of the requested expenditure, the name of the service provider or other recipient of the funds, the dollar amount of the requested expenditure [which] that may not be exceeded without additional authorization and the date or dates during which the service will be rendered or events will occur for which the expenditure is requested.
(c) In a circuit court, the request [shall be] must be in the form and contain the information that is required by [rules] the policies, procedures, standards and guidelines of the Public Defense Services Commission. If the public defense services executive director denies a request for preauthorization to incur nonroutine fees and expenses, the person making the request may appeal the decision to the presiding judge of the circuit court. The presiding judge has final authority to preauthorize incurring nonroutine fees and expenses under this paragraph.
(d) Entitlement under [this subsection] subsection (7) of this section to payment for fees and expenses in circuit court is subject to [rules] the policies, procedures, standards and guidelines adopted under ORS 151.216. Entitlement to payment of nonroutine fees and expenses is dependent upon obtaining preauthorization from the court, if the case is in county or justice court, or from the public defense services executive director, if the case is in circuit court, except as otherwise provided in [rules] paragraph (c) of this subsection and in the policies, procedures, standards and guidelines adopted under ORS 151.216. [Approved and authorized] Fees and expenses shall be paid:
(A) By the county, in respect to a proceeding in a county or justice court.
(B) By the public defense services executive director from funds available for the purpose, in respect to a proceeding in a circuit court.
(C) By the city, in respect to a proceeding in municipal court.
(4) Upon completion of all services by the counsel of a person determined to be eligible for appointed counsel, the counsel shall submit a statement of all necessary and reasonable fees and expenses of investigation, preparation[,] and presentation and, if counsel was appointed by the court, a statement of all necessary and reasonable fees and expenses for legal representation [paid or incurred], supported by appropriate receipts or vouchers and certified by the counsel to be true and accurate. [The counsel, at that time, may request payment or reimbursement for any such expenses for which payment has not yet been approved and authorized.]
(5) In a county or justice court, the total fees and expenses payable under this section [shall] must be submitted to the court by counsel or other providers and [shall be] are subject to the review of the court. The court shall certify that such amount is fair reimbursement for fees and expenses for representation in the case as provided in subsection (6) of this section. Upon certification and any verification as provided under subsection (6) of this section, the amount of the fees and expenses approved by the court and not already paid shall be paid by the county.
(6) In a county or justice court, the court shall certify to the administrative authority responsible for paying fees and expenses under this section that the amount for payment is reasonable and that the amount is properly payable out of public funds.
(7) In a circuit court, the total fees and expenses payable under this section [shall] must be submitted to and are subject to review by the public defense services executive director. The public defense services executive director shall determine whether the amount is [fair reimbursement] necessary, reasonable and properly payable from public funds for fees and expenses for representation in the case as provided by [rules] the policies, procedures, standards and guidelines of the Public Defense Services Commission. The public defense services executive director shall pay the amount of the fees and expenses [approved and not already paid] determined necessary, reasonable and properly payable out of public funds. The court shall provide any information identified and requested by the public defense services executive director as needed for audit, statistical or any other purpose pertinent to ensure the proper disbursement of state funds or pertinent to the provision of appointed counsel compensated at state expense.
(8)
If the public defense services executive director denies, in whole or in part,
fees and expenses submitted for review and payment, the person who submitted
the payment request may appeal the decision to the presiding judge of the
circuit court. The presiding judge or the designee of the presiding judge shall
review the public defense services executive director’s decision for abuse of
discretion. The decision of the presiding judge or the designee of the
presiding judge is final.
(9)
The following may not be disclosed to the district attorney prior to the
conclusion of a case:
(a)
Requests and administrative or court orders for preauthorization to incur
nonroutine fees and expenses in the investigation, preparation and presentation
of the case; and
(b) Billings for such fees and expenses submitted by counsel or other providers.
[(8)]
(10) As used in this section unless
the context requires otherwise, “counsel” includes a legal advisor appointed under
ORS 135.045.
SECTION 6. ORS 137.769, as amended by section 97, chapter 962, Oregon Laws 2001, is amended to read:
137.769. (1) When a defendant is examined under ORS 137.767, the defendant may retain a psychiatrist, psychologist or other expert to perform an examination on the defendant’s behalf. A psychiatrist, psychologist or other expert retained by the defendant must be provided reasonable access to:
(a) The defendant for the purpose of the examination; and
(b) All relevant medical and psychological records and reports.
(2) If the defendant is financially eligible for appointed counsel at state expense, the defendant may request [approval and] preauthorization [of the payment of] to incur the fees and expenses of a psychiatrist, psychologist or other expert as provided in ORS 135.055 (3).
SECTION 7. ORS 138.500, as amended by section 29, chapter 962, Oregon Laws 2001, is amended to read:
138.500. (1) If a defendant in a criminal action or a petitioner in a proceeding pursuant to ORS 138.510 to 138.680 wishes to appeal from an appealable adverse final order or judgment of a circuit court and if the person is without funds to employ suitable counsel possessing skills and experience commensurate with the nature and complexity of the case for the appeal, the person may request the circuit court from which the appeal is or would be taken to appoint counsel to represent the person on appeal. The following apply to a request under this subsection:
(a) The request shall be in writing and shall be made within the time during which an appeal may be taken or, if the notice of appeal has been filed, at any time thereafter. The request shall include a brief statement of the assets, liabilities and income in the previous year of the person unless the court already determined the person to be financially eligible for appointed counsel at state expense for purposes of the specific case, in which instance, the written request need only so indicate. However, if a request relies on a court’s previous determination that the person is financially eligible, the court, in its discretion, may require the person to submit a new statement of assets, liabilities and income.
(b) If, based upon a request under paragraph (a) of this subsection, the court finds that petitioner or defendant previously received the services of appointed counsel or currently is without funds to employ suitable counsel for an appeal, the court shall appoint counsel to represent petitioner or defendant on the appeal.
(2)(a) Notwithstanding subsection (1) of this section, when a defendant has been sentenced to death, the request for appointed counsel shall be made to the Supreme Court. The Supreme Court shall appoint suitable counsel to represent the defendant on the appeal.
(b) After the notice of appeal has been filed, the Court of Appeals has concurrent authority to appoint or substitute counsel or appoint or substitute a legal advisor for the defendant under ORS 138.504.
(c) The Supreme Court has concurrent authority to appoint or substitute counsel or appoint or substitute a legal advisor for the defendant under ORS 138.504 in connection with review of a Court of Appeals decision under ORS 2.520.
(3) Whenever a defendant in a criminal action or a petitioner in a proceeding pursuant to ORS 138.510 to 138.680 has filed a notice of appeal from an appealable adverse final order or judgment of a circuit court and the person is without funds to pay for a transcript, or portion thereof, necessary to present adequately the case upon appeal, the person may request the public defense services executive director to have the transcript, or portion thereof, furnished to the person. The following apply to a request under this subsection:
(a) The request shall be in writing and, shall include a brief statement of the assets, liabilities and income in the previous year of the person.
(b) If, based upon a request under paragraph (a) of this subsection, the public defense services executive director finds that the person is unable to pay for the transcript, the public defense services executive director shall have furnished to the person that portion of the transcript as may be material to the decision on appeal, if the public defense services executive director finds that the transcript or portion thereof is necessary.
(c) The cost of the transcript under paragraph (b) of this subsection shall be in the amount prescribed in ORS 21.470 and paid for as provided by the [rules] policies, procedures, standards and guidelines of the Public Defense Services Commission.
(4) [After oral argument on the appeal or, if there is no oral argument, after submission of the appeal to the court for decision] After submission of the original brief by counsel, the public defense services executive director shall determine the cost of briefs and any other expenses of appellant, except transcripts, necessary to appellate review and a reasonable amount of compensation for counsel appointed under this section. Compensation payable to appointed counsel shall be as established under ORS 151.216. On any review by the Supreme Court of the judgment of the Court of Appeals a person for whom counsel has been appointed shall by similar procedure recover the cost of briefs, any other expense of the review and compensation for counsel.
(5) Costs, expenses and compensation determined by the public defense services executive director under subsection (4) of this section shall be paid by the public defense services executive director from funds available for that purpose.
(6) If the public defense services executive director denies, in whole or in part, costs, expenses and compensation submitted for review and payment, the person who submitted the payment request may appeal the decision to the Chief Judge of the Court of Appeals, if the appeal is in the Court of Appeals, or to the Chief Justice of the Supreme Court, if the appeal is in the Supreme Court. The Chief Judge, Chief Justice or the designee of the Chief Judge or Chief Justice, as appropriate, shall review the public defense services executive director’s decision for abuse of discretion. The decision of the Chief Judge, the Chief Justice or the designee of the Chief Judge or Chief Justice is final.
[(6)] (7) The provisions of this section shall apply in favor of the defendant in a criminal action or the petitioner in a proceeding pursuant to ORS 138.510 to 138.680 when the person is respondent in an appeal taken by the state in a criminal action or by the defendant in a proceeding pursuant to ORS 138.510 to 138.680.
[(7)] (8) As used in subsection (4) of this section, “counsel” includes a legal advisor appointed under ORS 138.504.
SECTION 8. ORS 138.590, as amended by section 30, chapter 962, Oregon Laws 2001, is amended to read:
138.590. (1) Any petitioner who is unable to pay the expenses of a proceeding pursuant to ORS 138.510 to 138.680 or to employ suitable counsel possessing skills and experience commensurate with the nature of the conviction and complexity of the case for the proceeding may proceed as a financially eligible person pursuant to this section upon order of the circuit court in which the petition is filed.
(2) If the petitioner wishes to proceed as a financially eligible person, the person shall file with the petition an affidavit stating inability to pay the expenses of a proceeding pursuant to ORS 138.510 to 138.680, including, but not limited to, the filing fee required by ORS 138.560, or to employ suitable counsel for such a proceeding. The affidavit shall contain a brief statement of the petitioner’s assets and liabilities and income during the previous year. If the circuit court is satisfied that the petitioner is unable to pay such expenses or to employ suitable counsel, it shall order that the petitioner proceed as a financially eligible person. If the court finds that a petitioner who has been sentenced to death is not competent to decide whether to accept or reject the appointment of counsel, the court shall appoint counsel to represent the petitioner. However, when the Circuit Court for Marion County orders petitioner’s case transferred to another circuit court as provided in ORS 138.560 (4), the matter of petitioner’s proceeding as a financially eligible person shall be determined by the latter court.
(3) If a petitioner who has been sentenced to death qualifies for the appointment of counsel under this section but rejects the appointment, the court shall determine, after a hearing if necessary, whether the petitioner rejected the offer of counsel and made the decision with an understanding of its legal consequences. The court shall make appropriate findings on the record.
(4) In the order to proceed as a financially eligible person, the circuit court shall appoint suitable counsel to represent petitioner. Counsel so appointed shall represent petitioner throughout the proceedings in the circuit court.
(5) If counsel appointed by the circuit court determines that the petition as filed by petitioner is defective, either in form or in substance, or both, counsel may move to amend the petition within 15 days following counsel’s appointment, or within a further period as the court may allow. The amendment shall be permitted as of right at any time during this period. If appointed counsel believes that the original petition cannot be construed to state a ground for relief under ORS 138.510 to 138.680, and cannot be amended to state a ground for relief, counsel shall, in lieu of moving to amend the petition, inform the petitioner and notify the circuit court of counsel’s belief by filing an affidavit stating the belief and the reasons therefor with the clerk of the circuit court. This affidavit does not constitute a ground for denying the petition prior to a hearing upon its sufficiency, but the circuit court may consider the affidavit in deciding upon the sufficiency of the petition at the hearing.
(6) When a petitioner has been ordered to proceed as a financially eligible person, the expenses which are necessary for the proceedings upon the petition in the circuit court and the compensation to appointed counsel for petitioner as provided in this subsection shall be paid by the public defense services executive director from funds available for the purpose. At the conclusion of proceedings on a petition pursuant to ORS 138.510 to 138.680, the public defense services executive director shall determine and pay, as provided by [rules] the policies, procedures, standards and guidelines of the Public Defense Services Commission, the amount of expenses of petitioner and compensation for the services of appointed counsel in the proceedings in the circuit court.
(7) If the public defense services executive director denies, in whole or in part, expenses and compensation submitted for review and payment, the person who submitted the payment request may appeal the decision to the presiding judge of the circuit court. The presiding judge or the designee of the presiding judge shall review the public defense services executive director’s decision for abuse of discretion. The decision of the presiding judge or the designee of the presiding judge is final.
[(7)(a)] (8)(a) When a petitioner has been authorized to proceed as a financially eligible person, all court fees in the circuit court, except for the filing fee required by ORS 138.560, are waived.
(b) When a petitioner is allowed to file a petition without payment of the fee required by ORS 138.560 due to inability to pay, the fee is not waived but may be drawn from, or charged against, the petitioner’s trust account if the petitioner is an inmate in a correctional facility.
[(8)] (9) Notwithstanding any other provision of this chapter, a court may not appoint as counsel for a petitioner who has been sentenced to death a counsel who previously represented the petitioner at trial or on automatic and direct review in the case resulting in the death sentence unless the petitioner and the counsel expressly request continued representation.
SECTION 9. ORS 419B.195, as amended by section 43, chapter 962, Oregon Laws 2001, is amended to read:
419B.195. (1) If the child, the parent or guardian requests counsel for the child but is without sufficient financial means to employ suitable counsel possessing skills and experience commensurate with the nature of the petition and the complexity of the case, the court may appoint suitable counsel to represent the child at state expense if the child is determined to be financially eligible under [rules] the policies, procedures, standards and guidelines of the Public Defense Services Commission. Whenever requested to do so, the court shall appoint counsel to represent the child in a case filed pursuant to ORS 419B.100.
(2) Upon presentation of the order of appointment under this section by the attorney for the child, any agency, hospital, school organization, division or department of the state, doctor, nurse or other health care provider, psychologist, psychiatrist, police department or mental health clinic shall permit the attorney to inspect and copy any records of the child or children involved in the case, without the consent of the child or children or parents. This subsection does not apply to records of a police agency relating to an ongoing investigation prior to charging.
SECTION 10. ORS 419B.198, as amended by section 44, chapter 962, Oregon Laws 2001, is amended to read:
419B.198. (1) When the court appoints counsel to represent a child, it may order the parent, if able, or guardian of the estate, if the estate is able, to pay to the Public Defense Services Account in the General Fund, through the clerk of the court, in full or in part the administrative costs of determining the ability of the parents or estate to pay for legal services and the costs of the legal and other services that are related to the provision of appointed counsel.
(2) The test of the parent’s or estate’s ability to pay costs under subsection (1) of this section is the same test as applied to appointment of counsel for defendants under ORS 135.050 or under the [rules] policies, procedures, standards and guidelines adopted under ORS 151.216. If counsel is provided at state expense, the court shall apply this test in accordance with the guidelines adopted by the Public Defense Services Commission under ORS 151.485.
(3) If counsel is provided at state expense, the court shall determine the amount the parents or estate is required to pay for the costs of administrative, legal and other services related to the provision of appointed counsel in the same manner as this amount is determined under ORS 151.487.
(4) The court’s order of payment is enforceable in the same manner as an order of support under ORS 419B.408.
SECTION 11. ORS 419B.205, as amended by section 46, chapter 962, Oregon Laws 2001, is amended to read:
419B.205. Counsel shall be appointed for the parent or legal guardian whenever the nature of the proceedings and due process so require, and when the parent or legal guardian has been determined by the court to be eligible to receive appointed counsel under the standard in ORS 135.050 or the [rules] policies, procedures, standards and guidelines adopted under ORS 151.216. In deciding whether to appoint counsel under this section, the court shall consider the following factors:
(1) The duration and degree of invasiveness of the interference with the parent-child relationship that possibly could result from the proceeding;
(2) The complexity of the issues and evidence;
(3) The nature of allegations and evidence contested by the parent or legal guardian; and
(4) The effect the facts found or the disposition in the proceeding may have on later proceedings or events, including but not limited to termination of parental rights or criminal proceedings.
SECTION 12. ORS 419C.200, as amended by section 49, chapter 962, Oregon Laws 2001, is amended to read:
419C.200. (1) If the youth, the parent or guardian requests counsel for the youth but is without sufficient financial means to employ suitable counsel possessing skills and experience commensurate with the nature of the petition and the complexity of the case, the court may appoint suitable counsel to represent the youth at state expense if the youth is determined to be financially eligible under [rules] the policies, procedures, standards and guidelines of the Public Defense Services Commission. Whenever requested to do so, the court shall appoint counsel to represent the youth in every case filed pursuant to ORS 419C.005 in which the youth would be entitled to appointed counsel if the youth were an adult charged with the same offense.
(2) Upon presentation of the order of appointment under this section by the attorney for the youth, any agency, hospital, school organization, division or department of the state, doctor, nurse or other health care provider, psychologist, psychiatrist, police department or mental health clinic shall permit the attorney to inspect and copy any records of the youth or youths involved in the case, without the consent of the youth or youths or parents. This subsection does not apply to records of a police agency relating to an ongoing investigation prior to charging.
SECTION 13. ORS 419C.203, as amended by section 50, chapter 962, Oregon Laws 2001, is amended to read:
419C.203. (1) When the court appoints counsel to represent a youth, it may order the youth, if able, parent, if able, or guardian of the estate, if the estate is able, to pay to the Public Defense Services Account in the General Fund, through the clerk of the court, in full or in part the administrative costs of determining the ability of the youth, parents or estate to pay for legal services and the costs of the legal and other services that are related to the provision of appointed counsel.
(2) The test of the youth’s, parent’s or estate’s ability to pay costs under subsection (1) of this section is the same test as applied to appointment of counsel for defendants under ORS 135.050 or under the [rules] policies, procedures, standards and guidelines adopted under ORS 151.216. If counsel is provided at state expense, the court shall apply this test in accordance with the guidelines adopted by the Public Defense Services Commission under ORS 151.485.
(3) If counsel is provided at state expense, the court shall determine the amount the youth, parents or estate is required to pay for the costs of administrative, legal and other services related to the provision of appointed counsel in the same manner as this amount is determined under ORS 151.487.
(4) In determining whether to order the youth to pay costs under subsection (1) of this section, the court shall also consider the reformative effect of having the youth pay. The court may order that a portion of any moneys earned by the youth in juvenile work projects be used to pay costs ordered under subsection (1) of this section.
(5) The court’s order of payment is enforceable in the same manner as an order of support under ORS 419C.600.
SECTION 14. ORS 419C.245, as amended by section 84, chapter 962, Oregon Laws 2001, is amended to read:
419C.245. The juvenile department counselor shall inform a youth and the youth’s parents or guardian of the youth’s right to counsel and to appointed counsel at state expense, if the youth is determined to be financially eligible under [rules] the policies, procedures, standards and guidelines of the Public Defense Services Commission. The right to counsel shall attach prior to the youth’s entering into a formal accountability agreement.
SECTION 15. ORS 151.213 is amended to read:
151.213. (1) The Public Defense Services Commission is established in the judicial branch of state government. Except for the appointment or removal of commission members, the commission and employees of the commission are not subject to the exercise of administrative authority and supervision by the Chief Justice of the Supreme Court as the administrative head of the Judicial Department.
(2) The commission consists of seven members appointed by order of the Chief Justice. In addition to the seven appointed members, the Chief Justice serves as a nonvoting, ex officio member. The Chief Justice shall appoint at least two persons who are not bar members, at least one person who is a bar member and who is engaged in criminal defense representation [but is not primarily engaged in representing persons at state expense] and at least one person who is a former Oregon state prosecutor. Except for the Chief Justice or a senior judge under ORS 1.300, a member may not serve concurrently as a judge, a prosecuting attorney or an employee of a law enforcement agency. A person who is primarily engaged in providing public defense services may not serve as a member of the commission.
(3) The term of a member is four years beginning on the effective date of the order of the Chief Justice appointing the member. A member is eligible for reappointment if qualified for membership at the time of reappointment. A member may be removed from the commission by order of the Chief Justice. If a vacancy occurs for any cause before the expiration of the term of a member, the Chief Justice shall make an appointment to become immediately effective for the unexpired term.
(4) A chairperson and a vice chairperson shall be appointed by order of the Chief Justice every two years with such functions as the commission may determine. A member is eligible for reappointment as chairperson or vice chairperson.
(5) A majority of the voting members constitutes a quorum for the transaction of business.
(6) A member of the commission is not entitled to compensation for services as a member, but is entitled to expenses as provided in ORS 292.495 (2).
SECTION 16. Section 17 of this 2003 Act is added to and made a part of ORS 151.211 to 151.219.
SECTION 17. Officers and employees of the office of public defense services, who are appointed under a personnel plan adopted by the Public Defense Services Commission, are state officers or employees in the exempt service and are not subject to ORS chapter 240.
SECTION 18. ORS 151.505 is amended to read:
151.505. (1) At the conclusion of a case or matter in which the first accusatory instrument or petition in the trial court was filed after January 1, 1998, and in which the court appointed counsel to represent a person, a trial or appellate court may include in its judgment an order that the person repay in full or in part the administrative costs of determining the eligibility of the person for appointed counsel and the costs of the legal and other services that are related to the provision of appointed counsel.
(2) Costs repayable under this section include a reasonable attorney fee for counsel appointed to represent the person and a reasonable amount for expenses authorized under ORS 135.055. A reasonable attorney fee is presumed to be a reasonable number of hours at the hourly rate authorized by the State Court Administrator under ORS 151.430.
(3) Costs repayable under this section do not include costs imposed and paid under a previous order under ORS 151.487, but may include costs imposed under an order under ORS 151.487 that are unpaid at the time the judgment is filed.
(4) The court may not order a person to pay costs under this section unless the person is or may be able to pay the costs. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the person and the nature of the burden that payment of costs will impose. [The determination of the ability of a person to pay costs and the amount of costs to be paid shall be subject to the guidelines and procedures issued by the State Court Administrator under ORS 151.487.]
(5) A person who has been ordered to pay costs under this section and who is not in contumacious default in the payment of the costs may at any time petition the court for remission of the payment of costs or any unpaid portion of the costs. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the person ordered to repay or on the immediate family of the person, the court may remit all or part of the amount due or modify the method of payment.
(6) Except for moneys payable under subsection (1) of this section pursuant to an order under ORS 151.487, all moneys collected or paid under this section shall be paid into the General Fund and credited to the Criminal Fine and Assessment Account.
(7) Any part of the costs ordered to be paid under this section that is not paid may be enforced against the person as provided in ORS 137.450 if the judgment is a judgment in a criminal action or in the same manner as unpaid costs may be enforced under ORS 151.487.
SECTION 19. ORS 151.505, as amended by section 39, chapter 962, Oregon Laws 2001, is amended to read:
151.505. (1) At the conclusion of a case or matter in which the first accusatory instrument or petition in the trial court was filed after January 1, 1998, and in which the court appointed counsel to represent a person, a trial or appellate court may include in its judgment an order that the person repay in full or in part the administrative costs of determining the eligibility of the person for appointed counsel and the costs of the legal and other services that are related to the provision of appointed counsel.
(2) Costs repayable under this section include a reasonable attorney fee for counsel appointed to represent the person and a reasonable amount for expenses authorized under ORS 135.055. A reasonable attorney fee is presumed to be a reasonable number of hours at the hourly rate authorized by the Public Defense Services Commission under ORS 151.216. For purposes of this subsection, compensation of counsel [shall be] is determined by reference to a schedule of compensation established by the commission.
(3) Costs repayable under this section do not include costs imposed and paid under a previous order under ORS 151.487, but may include costs imposed under an order under ORS 151.487 that are unpaid at the time the judgment is filed.
(4) The court may not order a person to pay costs under this section unless the person is or may be able to pay the costs. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the person and the nature of the burden that payment of costs will impose. [The determination of the ability of a person to pay costs and the amount of costs to be paid shall be subject to the guidelines and procedures issued by the commission under ORS 151.487.]
(5) A person who has been ordered to pay costs under this section and who is not in contumacious default in the payment of the costs may at any time petition the court for remission of the payment of costs or any unpaid portion of the costs. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the person ordered to repay or on the immediate family of the person, the court may remit all or part of the amount due or modify the method of payment.
(6) Except for moneys payable under subsection (1) of this section pursuant to an order under ORS 151.487, all moneys collected or paid under this section shall be paid into the General Fund and credited to the Criminal Fine and Assessment Account.
(7) Any part of the costs ordered to be paid under this section that is not paid may be enforced against the person as provided in ORS 137.450 if the judgment is a judgment in a criminal action or in the same manner as unpaid costs may be enforced under ORS 151.487.
SECTION 20. ORS 279.710 is amended to read:
279.710. As used in ORS 279.545 to 279.746, unless the context otherwise requires:
(1) “Department” means the Oregon Department of Administrative Services.
(2) “State agency” or “agency” means every state officer, board, commission, department, institution, branch or agency of the state government, whose costs are paid wholly or in part from funds held in the State Treasury, except:
(a) The Legislative Assembly, the courts and their officers and committees; [, and except]
(b)
The Public Defense Services Commission; and
(c) The Secretary of State and the State Treasurer in the performance of the duties of their constitutional offices.
(3) “Purchase” includes acquisition of personal property by lease or rental agreement.
(4) “Services” includes services rendered by independent contractors to the state relating to insurance, fidelity bonds, public improvement projects and other services, including but not limited to personal services and utility services.
(5) “Personal services” means services designated by rule as such by the Director of the Oregon Department of Administrative Services pursuant to ORS 279.051.
SECTION 21. ORS 291.002 is amended to read:
291.002. As used in ORS 291.001 to 291.034, 291.201 to 291.222, 291.232 to 291.260, 291.307 and 291.990, unless the context requires otherwise:
(1) “Department” means the Oregon Department of Administrative Services.
(2) “Director” means the Director of the Oregon Department of Administrative Services.
(3) “Dedicated fund” means a fund in the State Treasury, or a separate account or fund in the General Fund in the State Treasury, that by law is dedicated, appropriated or set aside for a limited object or purpose; but “dedicated fund” does not include a revolving fund or a trust fund.
(4) “Revolving fund” means a fund in the State Treasury, established by law, from which is paid the cost of goods or services furnished to or by a state agency, and which is replenished through charges made for such goods or services or through transfers from other accounts or funds; and specifically includes funds derived from receipts by the State Board of Higher Education of tuition, fees, dormitory earnings, student activity receipts and sales of products and services incident to education functions.
(5) “Trust fund” means a fund in the State Treasury in which designated persons or classes of persons have a vested beneficial interest or equitable ownership, or which was created or established by a gift, grant, contribution, devise or bequest that limits the use of the fund to designated objects or purposes.
(6) “Classification of expenditures” means the major groups or categories of expenditures for the purpose of budget-making and accounting that are established as provided in ORS 291.206.
(7) “State agency” or “agency” means
every state officer, board, commission, department, institution, branch or
agency of the state government, whose costs are paid wholly or in part from
funds held in the State Treasury, except:
(a) The Legislative Assembly, the courts and their officers and committees; [, and except]
(b)
The Public Defense Services Commission; and
(c) The Secretary of State and the State Treasurer in the performance of the duties of their constitutional offices.
(8) “State officer” means any elected or appointed state officer, including members of boards and commissions, except the members and officers of the Legislative Assembly, the courts,[and] the Secretary of State and the State Treasurer in the performance of the duties of their constitutional offices and the members of the Public Defense Services Commission.
SECTION 22. ORS 291.045 is amended to read:
291.045. As used in this section and ORS 291.047:
(1) “Information technology” includes, but is not limited to, all present and future forms of hardware, software and services for data processing, office automation and telecommunications.
(2) “State agency” includes every
state officer, board, commission, department, institution, branch or agency of
the state government, whose costs are paid wholly or in part from funds held in
the State Treasury, except:
(a)
The Legislative Assembly, the courts and their officers and committees; and
(b) The Public Defense Services Commission.
(3) “Public contract” means any acquisition, disposition, purchase, lease, sale or transfer of rights by a state agency of real or personal property, public improvements or services.
(4) “Public improvement” means projects for construction, reconstruction or renovation on real property by or for a state agency.
SECTION 23. ORS 42.125 is amended to read:
42.125. (1) For the purposes of ORS 40.510 (1) and (4), each state officer and state agency may have a seal which, unless specifically provided otherwise by law, shall consist of an impression, imprint or likeness of the state seal accompanied by the name of the state officer or state agency.
(2) As used in this section:
(a) “Seal” has the meaning given that term in ORS 42.110.
(b) “State agency” means every state
officer, board, commission, department, institution, branch or agency of the
state government, except:
(A)
The Legislative Assembly and the courts and their officers and committees; and
(B) The Public Defense Services Commission.
(c) “State officer” includes any appointed state official who is authorized by the Oregon Department of Administrative Services to have a seal and any elected state official, except members of the Legislative Assembly.
SECTION 24. ORS 84.064 is amended to read:
84.064. For purposes of ORS 84.049,
84.052 and 84.055, the Oregon Department of Administrative Services shall make
determinations and adopt standards for state agencies. As used in this section,
“state agency” includes every state officer and board, commission, department,
institution, branch and agency of the state government whose costs are paid
wholly or in part from funds held in the State Treasury, except:
(a)
The Legislative Assembly, the courts, the district attorney for each county and
their officers and committees; and
(b) The Public Defense Services Commission.
SECTION 25. ORS 171.133 is amended to read:
171.133. (1) A state agency shall not cause a bill or measure to be introduced before the Legislative Assembly if the bill or measure has not been approved by the Governor.
(2) As used in ORS 171.130 and this
section, “state agency” means every state agency whose costs are paid wholly or
in part from funds held in the State Treasury, except:
(a) The Legislative Assembly, the courts and their officers and committees; [, and except]
(b)
The Public Defense Services Commission; and
(c) The Secretary of State, the State Treasurer, the Attorney General, the Commissioner of the Bureau of Labor and Industries and the Superintendent of Public Instruction.
SECTION 26. ORS 184.473 is amended to read:
184.473. As used in ORS 184.475 and 184.477:
(1) “Information technology” includes, but is not limited to, all present and future forms of hardware, software and services for data processing, office automation and telecommunications.
(2) “State agency” includes every
state officer, board, commission, department, institution, branch or agency of
the state government whose costs are paid wholly or in part from funds held in
the State Treasury, except:
(a)
The Secretary of State, the State Treasurer, the Legislative Assembly, the
courts and their officers and committees;
and
(b) The Public Defense Services Commission.
SECTION 27. Section 1, chapter 937, Oregon Laws 2001, is amended to read:
Sec. 1. (1) As used in this section and section 2, chapter 937, Oregon Laws 2001 [of this 2001 Act]:
(a) “Best value procurement” means a method of selecting a vendor based on a determination of which vendor’s proposal offers the best trade-off between price and performance, in which quality is considered an integral performance factor. The selection may be based on evaluation factors including but not limited to:
(A) The total cost of ownership, including the cost of acquiring, operating, maintaining and supporting a product or service over its projected lifetime;
(B) The technical merit of the vendor’s proposal; and
(C) The probability of the vendor performing the requirements stated in the solicitation on time, with high quality and in a manner that accomplishes the stated business objectives.
(b) “Government-vendor partnership” means a mutually beneficial contractual relationship between a state agency and a vendor, in which the two share risk and reward and in which value is added to the procurement of information technology.
(c) “Information technology” has the meaning given that term in ORS 291.038.
(d) “Solution-based solicitation” means a solicitation whose requirements are stated in terms of how the product or service being purchased should accomplish a business objective, rather than in terms of the technical design of the product or service.
(e) “State agency” includes every
state officer, board, commission, department, institution, branch or agency of
the state government whose costs are paid wholly or in part from funds held in
the State Treasury, except:
(A) The Legislative Assembly, the courts and their officers and committees; [, and except]
(B)
The Public Defense Services Commission; and
(C) The Secretary of State and the State Treasurer in the performance of their duties.
(2) The intent of best value procurement of information technology is to enable vendors to offer, and a state agency to select, the most appropriate solution to meet the business objectives identified in a solicitation and to keep all parties focused on the desired outcome of a procurement. Business process reengineering, system design and technology implementation may be combined into a single solicitation.
(3) The acquisition of information technology by a state agency may be conducted using any procurement method available that is best suited to the intended purpose of the state, subject to ORS chapter 279, including the best value procurement method. When a state agency and the Oregon Department of Administrative Services determine that acquisitions are highly complex or that the optimal solution to a business problem is not known, the state agency and the department may use solution-based solicitations and government-vendor partnerships, subject to ORS chapter 279.
SECTION 28. ORS 135.705 is amended to read:
135.705. (1)(a) If the person injured acknowledges in writing, at any time before trial on an accusatory instrument for the crime, that the person has received satisfaction for the injury, the court may, in its discretion, on payment of the costs and expenses incurred, order the accusatory instrument dismissed. The order must be entered in the register.
(b) For purposes of paragraph (a) of this subsection, a written acknowledgment that a civil penalty under ORS 30.875 has been paid is not evidence that the person injured has received full satisfaction for the injury and is not a compromise under this section.
(2) As used in this section, “costs” includes those expenses specially incurred by the state in prosecuting the defendant, including costs under ORS 151.505 for the compensation of counsel appointed pursuant to ORS 135.045 or 135.050 and fees and expenses [approved] paid under ORS 135.055.
SECTION 29. ORS 161.665, as amended by section 41, chapter 962, Oregon Laws 2001, is amended to read:
161.665. (1) Except as provided in ORS 151.505, the court, only in the case of a defendant for whom it enters a judgment of conviction, may include in its sentence thereunder a provision that the convicted defendant [shall] pay as costs expenses specially incurred by the state in prosecuting the defendant. Costs include a reasonable attorney fee for counsel appointed pursuant to ORS 135.045 or 135.050 and a reasonable amount for fees and expenses [approved] incurred pursuant to preauthorization under ORS 135.055. A reasonable attorney fee is presumed to be a reasonable number of hours at the hourly rate authorized by the Public Defense Services Commission under ORS 151.216. Costs do not include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.
(2) Except as provided in ORS 151.505, the court, after the conclusion of an appeal of its initial judgment of conviction, may include in its final judgment or modify the judgment to include a requirement that a convicted defendant pay as costs a reasonable attorney fee for counsel appointed pursuant to ORS 138.500, including counsel who is appointed under ORS 151.216 or counsel who is under contract to provide services for the proceeding under ORS 151.219, and other costs and expenses allowed by the public defense services executive director under ORS 138.500 (4). A reasonable attorney fee is presumed to be a reasonable number of hours at the hourly rate authorized by the commission under ORS 151.216.
(3) For purposes of subsections (1) and (2) of this section, compensation of counsel [shall be] is determined by reference to a schedule of compensation established by the commission under ORS 151.216.
(4) The court [shall] may not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.
(5) A defendant who has been sentenced to pay costs under this section and who is not in contumacious default in the payment [thereof] of costs may at any time petition the court [which] that sentenced the defendant for remission of the payment of costs or of any unpaid portion [thereof] of costs. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the immediate family of the defendant, the court may remit all or part of the amount due in costs, or modify the method of payment under ORS 161.675.
(6) All moneys collected or paid under this section shall be paid into the General Fund and credited to the Criminal Fine and Assessment Account.
SECTION 30. ORS 419B.201, as amended by section 45, chapter 962, Oregon Laws 2001, is amended to read:
419B.201. When the court appoints counsel for the child and the child is determined to be entitled to, and financially eligible for, appointment of counsel at state expense, and the parent or guardian is without sufficient financial means to employ counsel, the compensation for counsel and reasonable fees and expenses of investigation, preparation and presentation paid or incurred shall be [allowed] determined and paid as provided in ORS 135.055.
SECTION 31. ORS 419C.206, as amended by section 51, chapter 962, Oregon Laws 2001, is amended to read:
419C.206. When the court appoints counsel for the youth and the youth is determined to be entitled to, and financially eligible for, appointment of counsel at state expense and the parent or guardian is without sufficient financial means to employ counsel, the compensation for counsel and reasonable fees and expenses of investigation, preparation and presentation paid or incurred shall be [allowed] determined and paid as provided in ORS 135.055.
SECTION 32. ORS 161.346, as amended by section 40, chapter 962, Oregon Laws 2001, is amended to read:
161.346. (1) The Psychiatric Security Review Board shall conduct hearings upon any application for discharge, conditional release, commitment or modification filed pursuant to ORS 161.336, 161.341 or 161.351 and as otherwise required by ORS 161.336 to 161.351 and shall make findings on the issues before it which may include:
(a) If the board finds that the person is no longer affected by mental disease or defect, or, if so affected, no longer presents a substantial danger to others, the board shall order the person discharged from commitment or from conditional release.
(b) If the board finds that the person is still affected by a mental disease or defect and is a substantial danger to others, but can be controlled adequately if conditionally released with treatment as a condition of release, the board shall order the person conditionally released as provided in ORS 161.336.
(c) If the board finds that the person has not recovered from the mental disease or defect and is a substantial danger to others and cannot adequately be controlled if conditionally released on supervision, the board shall order the person committed to, or retained in, a state hospital designated by the Department of Human Services for care, custody and treatment.
(2) At any time, the board may appoint a psychiatrist or licensed psychologist to examine the person and to submit a report to the board. Reports filed with the board pursuant to the examination shall include, but need not be limited to, an opinion as to the mental condition of the person and whether the person presents a substantial danger to others, and whether the person could be adequately controlled with treatment as a condition of release. To facilitate the examination of the person, the board may order the person placed in the temporary custody of any state hospital or other suitable facility.
(3) The board may make the determination regarding discharge or conditional release based upon the written reports submitted pursuant to this section. If any member of the board desires further information from the examining psychiatrist or licensed psychologist who submitted the report, these persons shall be summoned by the board to give testimony. The board shall consider all evidence available to it which is material, relevant and reliable regarding the issues before the board. Such evidence may include but is not limited to the record of trial, the information supplied by the attorney representing the state or by any other interested party, including the person, and information concerning the person’s mental condition and the entire psychiatric and criminal history of the person. All evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible at hearings. Testimony shall be taken upon oath or affirmation of the witness from whom received. The officer presiding at the hearing shall administer oaths or affirmations to witnesses.
(4) The board shall furnish to the person about whom the hearing is being conducted, the attorney representing the person, the Attorney General, the district attorney and the court or department of the county from which the person was committed written notice of any hearing pending under this section within a reasonable time prior to the hearing. The notice shall include:
(a) The time, place and location of the hearing.
(b) The nature of the hearing and the specific action for which a hearing has been requested, the issues to be considered at the hearing and a reference to the particular sections of the statutes and rules involved.
(c) A statement of the authority and jurisdiction under which the hearing is to be held.
(d) A statement of all rights under subsection (6) of this section.
(5) Prior to the commencement of a hearing, the board or presiding officer shall inform each party as provided in ORS 183.413 (2).
(6) At the hearing, the person about whom the hearing is being held shall have the right:
(a) To appear at all proceedings held pursuant to this section, except board deliberations.
(b) To cross-examine all witnesses appearing to testify at the hearing.
(c) To subpoena witnesses and documents as provided in ORS 161.395.
(d) To be represented by suitable legal counsel possessing skills and experience commensurate with the nature and complexity of the case, to consult with counsel prior to the hearing and, if financially eligible, to have suitable counsel appointed at state expense.
(e) To examine all information, documents and reports which the board considers. If then available to the board, the information, documents and reports shall be disclosed to the person so as to allow examination prior to the hearing.
(7) A record shall be kept of all hearings before the board, except board deliberations.
(8) Upon request of any party before the board, or on its own motion, the board may continue a hearing for a reasonable period not to exceed 60 days to obtain additional information or testimony or for other good cause shown.
(9) Within 15 days following the conclusion of the hearing, the board shall provide to the person, the attorney representing the person, the Attorney General or other attorney representing the state, if any, written notice of the board’s decision.
(10) The burden of proof on all issues at hearings of the board shall be by a preponderance of the evidence.
(11) If the board determines that the person about whom the hearing is being held is financially eligible, the board shall appoint suitable counsel to represent the person. Counsel so appointed shall be an attorney who satisfies the professional [qualification standards] qualifications established by the Public Defense Services Commission under ORS 151.216. The public defense services executive director shall determine and allow fair compensation for counsel appointed under this subsection and the reasonable expenses of the person in respect to the hearing. Compensation payable to appointed counsel shall not be less than the applicable compensation level established under ORS 151.216. The compensation and expenses so allowed shall be paid by the public defense services executive director from funds available for the purpose.
(12) The Attorney General may represent the state at contested hearings before the board unless the district attorney of the county from which the person was committed elects to represent the state. The district attorney of the county from which the person was committed shall cooperate with the Attorney General in securing the material necessary for presenting a contested hearing before the board. If the district attorney elects to represent the state, the district attorney shall give timely written notice of such election to the Attorney General, the board and the attorney representing the person.
SECTION 33. ORS 190.490 is amended to read:
190.490. (1) Every agreement entered into under ORS 190.485 shall be submitted to the Attorney General before taking effect. The Attorney General shall determine whether the agreement is in proper form and compatible with the laws of this state. If the Attorney General determines that the agreement is improper in some respect, the Attorney General shall give written notice to the state agency concerning the specific respects in which the agreement fails to comply with law. Failure of the Attorney General to give such notice to the state agency within 30 days of submission of the agreement to the Attorney General’s office shall constitute approval of the agreement. The Attorney General may exempt certain agreements, classes of agreements or form agreements from the requirement that the agreement be approved by the Attorney General before taking effect.
(2) The state agency shall file any agreement made under ORS 190.485 with the Oregon Department of Administrative Services within 30 days of the effective date of the agreement. The department may adopt rules necessary for the administration of this subsection.
(3) This section does not apply to the Legislative Assembly, the courts and their officers and committees, the Secretary of State and the State Treasurer in the performance of the duties of their constitutional offices and the Public Defense Services Commission.
SECTION 34. ORS 279.545 is amended to read:
279.545. As used in ORS 279.545 to 279.650, unless the context otherwise requires:
(1) “Post-consumer waste” means a finished material which would normally be disposed of as solid waste, having completed its life cycle as a consumer item. “Post-consumer waste” does not include manufacturing waste.
(2) “Public agency” means a county, city, special district or other public or municipal corporation, and any instrumentality thereof.
(3) “Recycled material” means any material that would otherwise be a useless, unwanted or discarded material except for the fact that the material still has useful physical or chemical properties after serving a specific purpose and can, therefore, be reused or recycled.
(4) “Recycled paper” means a paper product with not less than:
(a) Fifty percent of its fiber weight consisting of secondary waste materials; or
(b) Twenty-five percent of its fiber weight consisting of post-consumer waste.
(5) “Recycled PETE product” means a product containing post-consumer polyethylene terephthalate material.
(6) “Recycled product” means all materials, goods and supplies, not less than 50 percent of the total weight of which consists of secondary and post-consumer waste with not less than 10 percent of its total weight consisting of post-consumer waste. “Recycled product” also includes any product that could have been disposed of as solid waste, having completed its life cycle as a consumer item, but otherwise is refurbished for reuse without substantial alteration of the product’s form.
(7) “Secondary waste materials” means fragments of products or finished products of a manufacturing process which has converted a virgin resource into a commodity of real economic value, and includes post-consumer waste, but does not include excess virgin resources of the manufacturing process. For paper, “secondary waste materials” does not include fibrous waste generated during the manufacturing process such as fibers recovered from waste water or trimmings of paper machine rolls, mill broke, wood slabs, chips, sawdust or other wood residue from a manufacturing process.
(8) “State agency” includes the Legislative Assembly, the courts and their officers and committees, [and] the constitutional state officers and the Public Defense Services Commission.
SECTION 35. ORS 279.828 is amended to read:
279.828. (1)(a) Without requiring competitive bidding:
(A) The Oregon Department of Administrative Services may sell or transfer supplies and equipment that are surplus, obsolete or unused to or between state agencies, to local government units and to not-for-profit organizations, including any rehabilitation facility, work activity center, or residential facility which operates under contract or agreement with, or grant from, any public agency. Not-for-profit organizations eligible to receive federal surplus supplies and equipment shall be eligible to receive state surplus supplies and equipment. State agencies, local government units and not-for-profit organizations, in that order, shall be given preference to acquire state surplus supplies and equipment.
(B) The department may sell or transfer supplies and equipment that are surplus, obsolete or unused, at their option, to or between the courts, the constitutional state officers, [and] the Legislative Assembly or any of its statutory, standing, special or interim committees and the Public Defense Services Commission.
(C) The department may transfer computers and related hardware that are surplus, obsolete or unused to a common or union high school district or education service district. The department shall not charge the school district a fee for the transfer.
(b) Authorized transfers under this subsection include those made with or without consideration.
(2) In accordance with the provisions of this chapter relating to competitive bidding, the department may sell supplies, materials and equipment of the state that are surplus, obsolete or unused.
(3) All proceeds derived from the disposal of property under the authority of this section, except such particular proceeds as may not under federal laws or regulations be deposited in the manner provided by this section, shall be deposited in the State Treasury to the credit of the Oregon Department of Administrative Services Operating Fund created by ORS 283.076.
(4) In addition to the other purposes for which the Oregon Department of Administrative Services Operating Fund may be used, the Oregon Department of Administrative Services Operating Fund is appropriated continuously for and may be used for paying the administrative costs incurred in the transfer or disposal of property pursuant to subsections (1) and (2) of this section, and for paying the amount due to the agency the property of which has been sold. The total amount payable to the agency for whom property is sold shall be the amount derived from the disposal of the property less the amount of the administrative costs incurred in disposing of the property. Such total amount may be deposited in the State Treasury to the credit of the miscellaneous receipts account established pursuant to ORS 279.833 for the agency the property of which has been sold.
(5) The cost of services for disposal of property under this section that is not recoverable from the proceeds of a sale of such property shall be charged to the agency served and paid to the department in the same manner as other claims against the agency are paid.
SECTION 36. ORS 283.110 is amended to read:
283.110. (1) Subject to rules prescribed by the Oregon Department of Administrative Services, any state agency shall, as its own facilities permit, furnish to any other state agency such services (including labor), facilities and materials as are requisitioned by the head of another agency. The expense shall be charged to the agency served, which shall pay the expense to the agency furnishing the services, facilities or materials in the manner other claims are paid. Agencies shall, as far as practicable, cooperate with one another in the use of services, quarters and equipment.
(2) Except as provided in ORS 283.076 (3), all moneys received by an agency in payment of services, facilities or materials furnished to another state agency as provided in this section, or in payment of services, facilities or materials furnished to other persons may be, or if required by the Oregon Department of Administrative Services, shall be paid into the State Treasury for deposit to the credit of the miscellaneous receipts account established pursuant to ORS 279.833 for the agency furnishing the services, facilities or materials.
(3) The constitutional state officers and the Legislative Assembly or any of its statutory, standing, special or interim committees, unless prohibited by law, may elect to furnish services, facilities and materials to one another and to state agencies and officers as defined in ORS 291.002, and the courts, constitutional state officers, [and] the Legislative Assembly or any of its statutory, standing, special or interim committees and the Public Defense Services Commission may elect to requisition services, facilities and materials as provided in this section.
SECTION 37. ORS 291.011 is amended to read:
291.011. (1) The Director of the Oregon Department of Administrative Services may require a fidelity bond of any officer, employee or agent of the department or of any other state officer, employee or agent who has charge of, handles or has access to any money or property belonging to the state or in which the state may have an interest and who is not otherwise required by law to give a fidelity bond. The amounts of the bonds shall be fixed by the director, except as otherwise provided by law, and the sureties shall be approved by the director. The premium on the bond of any officer, employee or agent shall be paid by the state agency that employs the officer, employee or agent.
(2) The Oregon Department of Administrative Services may procure or provide and may administer a blanket bond covering any or all officers and employees of the state. The bond shall contain such coverages and shall be in such amounts as the Oregon Department of Administrative Services deems adequate to protect the interest of the state. Procurement of the bond to cover any officer or employee of the state shall constitute compliance with any statute requiring that officer or employee to be bonded up to the monetary limit of the blanket bond which the Oregon Department of Administrative Services purchases or provides. The coverage and insuring amount applicable in such bond to any officer or employee of the state shall be at least equal to that required by statute. The cost of the premium on the bond shall be charged to the various state agencies employing the state officers and employees covered by the bond.
(3) The provisions of this section are considered to satisfy any provision of law requiring individual fidelity bonds for elected officers if the level of coverage of the blanket fidelity bond is at least equal to the individual statutory requirements.
(4) As used in this section:
(a) “Officers and employees of the state” includes all elected and appointed officers and employees of the State of Oregon and all persons appointed by a state agency on a temporary or intermittent basis to act for the state in particular matters where such persons have charge of, handle or have access to any money or property belonging to the state or in which the state may have an interest.
(b) “State agency” means every state officer, board, commission, department, institution, branch or agency of the state government and includes the Legislative Assembly and any of its statutory standing, special or interim committees, the courts and their officers and committees, [and] all constitutional state officers and the Public Defense Services Commission.
SECTION 38. ORS 291.030 is amended to read:
291.030. As used in ORS 291.032 and 291.034, “state agency” or “agency” includes the Legislative Assembly, at its option, or any of its statutory, standing, special or interim committees, at the option of such committee, [and] the courts and their officers and committees and the constitutional state officers, at their option, and the Public Defense Services Commission, at the option of the commission.
SECTION 39. ORS 293.300 is amended to read:
293.300. Except for claims based on obligations incurred or expenditures made by the Legislative Assembly and its officers and committees, the courts and their officers and committees, [and] the Secretary of State and State Treasurer in the performance of the functions of their constitutional offices and the Public Defense Services Commission, a claim for payment from any moneys in the State Treasury may not be paid if the claim is disapproved by the Oregon Department of Administrative Services. The department shall disapprove a claim if provision for payment thereof is not made by law and appropriation, the obligation or expenditure on which the claim is based is not authorized as provided by law or the claim does not otherwise satisfy requirements as provided by law.
SECTION 40. ORS 293.590 is amended to read:
293.590. (1) The Oregon Department of Administrative Services shall direct and control the accounting for all the fiscal affairs of the state government and agencies thereof, and shall provide for the maintenance of accounting records, including accounts stated in summary or in detail, for those fiscal affairs. The department is responsible for establishing and maintaining systems of accounting for state government and agencies thereof. The principles, standards and related requirements of those systems of accounting shall be as prescribed by the department and except as otherwise provided in this section shall be used by the state agencies thereof, unless otherwise directed by the department.
(2) In performing its functions under subsection (1) of this section, the department shall consult with the Secretary of State, State Treasurer and, to the extent it considers necessary or desirable, any other state agency or any federal agency.
(3) The department may, as its own facilities permit, furnish to any other state agency such accounting services (including labor), facilities and materials as are necessary, as determined by the department, for compliance by the state agency with subsection (1) of this section. The cost to the department of furnishing the services, facilities and materials, as determined by the department, shall be charged to the state agency and paid to the department in the same manner as other claims against the state agency are paid.
(4) This section is applicable to the Legislative Assembly and its officers and committees, the courts and their officers and committees, [and] the Secretary of State and State Treasurer in the performance of the functions of their constitutional offices and the Public Defense Services Commission only at their option.
SECTION 41. ORS 293.875 is amended to read:
293.875. (1) The State Treasurer is designated the cash management officer for the state and may review, establish and modify procedures for the efficient handling of cash and cash equivalents under the control of the State Treasury, the Secretary of State, the Judicial Department, the Legislative Assembly, the Public Defense Services Commission and state agencies, as defined in ORS 291.002.
(2) The State Treasurer shall continuously review the effectiveness of cash management of state agencies, the Secretary of State, the Judicial Department and the Legislative Assembly, and when the State Treasurer considers it appropriate shall report in writing to the subject agency the findings of this review, along with any recommendations. A copy of the report shall be provided to the Legislative Fiscal Officer and to the Secretary of State.
(3) State agencies shall employ the principles, standards and related requirements for cash management, including the use of secure disbursing and receiving documents and systems, prescribed by the State Treasurer.
SECTION 42. ORS 151.216, as amended by section 106, chapter 962, Oregon Laws 2001, and section 2 of this 2003 Act, is amended to read:
151.216. (1) The Public Defense Services Commission shall:
(a) Establish and maintain a public defense system that ensures the provision of public defense services in the most cost-efficient manner consistent with the Oregon Constitution, the United States Constitution and Oregon and national standards of justice.
(b) Establish an office of public defense services and appoint a public defense services executive director who serves at the pleasure of the commission.
(c) Submit the budget of the commission and the office of public defense services to the Legislative Assembly after the budget is submitted to the commission by the director and approved by the commission. The Chief Justice of the Supreme Court and the chairperson of the commission shall present the budget to the Legislative Assembly.
(d) Review and approve any public defense services contract negotiated by the director before the contract can become effective.
(e) Adopt a compensation plan, classification system and personnel plan for the office of public defense services that are commensurate with other state agencies.
(f) Adopt policies, procedures, standards and guidelines regarding:
(A) The determination of financial eligibility of persons entitled to be represented by appointed counsel at state expense;
(B) The appointment of counsel;
(C) The fair compensation of counsel appointed to represent a person financially eligible for appointed counsel at state expense;
(D) Appointed counsel compensation disputes;
(E) Any other costs associated with the representation of a person by appointed counsel in the state courts that are required to be paid by the state under ORS 34.355, 135.055, 138.500, 138.590, 161.346, 161.365, 161.385, 419A.211, 419B.201, 419B.208, 419B.518, 419B.908, 419C.206, 419C.209, 419C.408, 426.100, 426.135, 426.250, 426.307, 427.265, 427.295, 436.265 or 436.315 or any other provision of law that expressly provides for payment of such compensation, costs or expenses by the commission;
(F) Professional qualifications for counsel appointed to represent public defense clients;
(G) Performance for legal representation;
(H) The contracting of public defense services; [and]
(I) Contracting with expert witnesses to allow contracting with out-of-state expert witnesses only if in-state expert witnesses are not available or are more expensive than out-of-state expert witnesses; and
[(I)] (J) Any other matters necessary to carry out the duties of the commission.
(g)
Establish a peer review system for the approval of nonroutine fees and expenses
incurred in cases involving aggravated murder and the crimes listed in ORS
137.700 and 137.707. The review shall be conducted by a panel of attorneys who
practice in the area of criminal defense.
(h) Establish a complaint process that allows district attorneys, criminal defense counsel and the public to file complaints concerning the payment from public funds of nonroutine fees and expenses incurred in cases.
[(g)] (i) Reimburse the State Court Administrator from funds deposited in the subaccount established under ORS 151.225 for the costs of personnel and other costs associated with location of eligibility verification and screening personnel pursuant to ORS 151.489 by the State Court Administrator.
(2) Policies, procedures, standards and guidelines adopted by the commission supersede any conflicting rules, policies or procedures of the Public Defender Committee, State Court Administrator, circuit courts, the Court of Appeals, the Supreme Court and the Psychiatric Security Review Board related to the exercise of the commission’s administrative responsibilities under this section and transferred duties, functions and powers as they occur.
(3) The commission may accept gifts, grants or contributions from any source, whether public or private. However, the commission may not accept a gift, grant or contribution if acceptance would create a conflict of interest. Moneys accepted under this subsection shall be deposited in the Public Defense Services Account created in ORS 151.225 and expended for the purposes for which given or granted.
(4) The commission may not:
(a) Make any decision regarding the handling of any individual case;
(b) Have access to any case file; or
(c) Interfere with the director or any member of the staff of the director in carrying out professional duties involving the legal representation of public defense clients.
SECTION 43. ORS 135.055, as amended by section 26, chapter 962, Oregon Laws 2001, and section 5 of this 2003 Act, is amended to read:
135.055. (1) Counsel appointed pursuant to ORS 135.045 or 135.050 shall be paid fair compensation for representation in the case:
(a) By the county, subject to the approval of the governing body of the county, in a proceeding in a county or justice court.
(b) By the public defense services executive director from funds available for the purpose, in a proceeding in a circuit court.
(2) Except for counsel appointed pursuant to contracts or counsel employed by the public defense services executive director, compensation payable to appointed counsel under subsection (1) of this section:
(a) In a proceeding in a county or justice court may not be less than $30 per hour.
(b) In a proceeding in a circuit court is subject to the applicable compensation established under ORS 151.216.
(3)(a) A person determined to be eligible for appointed counsel is entitled to necessary and reasonable fees and expenses for investigation, preparation and presentation of the case for trial, negotiation and sentencing. The person or the counsel for the person shall upon written request secure preauthorization to incur fees and expenses that are not routine to representation but are necessary and reasonable in the investigation, preparation and presentation of the case, including but not limited to nonroutine travel, photocopying or other reproduction of nonroutine documents, necessary costs associated with obtaining the attendance of witnesses for the defense, investigator fees and expenses, expert witness fees and expenses and fees for interpreters and assistive communication devices necessary for the purpose of communication between counsel and a client or witness in the case. Preauthorization to incur a fee or expense does not guarantee that a fee or expense incurred pursuant to the preauthorization will be determined to be necessary or reasonable when the fee or expense is submitted for payment.
(b) In a county or justice court, the request must be in the form of a motion to the court. The motion must be accompanied by a supporting affidavit that sets out in detail the purpose of the requested expenditure, the name of the service provider or other recipient of the funds, the dollar amount of the requested expenditure that may not be exceeded without additional authorization and the date or dates during which the service will be rendered or events will occur for which the expenditure is requested.
(c) In a circuit court, the request must be in the form and contain the information that is required by the policies, procedures, standards and guidelines of the Public Defense Services Commission. If the public defense services executive director denies a request for preauthorization to incur nonroutine fees and expenses, the person making the request may appeal the decision to the presiding judge of the circuit court. The presiding judge has final authority to preauthorize incurring nonroutine fees and expenses under this paragraph.
(d) Entitlement under subsection (7) of this section to payment for fees and expenses in circuit court is subject to the policies, procedures, standards and guidelines adopted under ORS 151.216. Entitlement to payment of nonroutine fees and expenses is dependent upon obtaining preauthorization from the court, if the case is in county or justice court, or from the public defense services executive director, if the case is in circuit court, except as otherwise provided in paragraph (c) of this subsection and in the policies, procedures, standards and guidelines adopted under ORS 151.216. Fees and expenses shall be paid:
(A) By the county, in respect to a proceeding in a county or justice court.
(B) By the public defense services executive director from funds available for the purpose, in respect to a proceeding in a circuit court.
(C) By the city, in respect to a proceeding in municipal court.
(4) Upon completion of all services by the counsel of a person determined to be eligible for appointed counsel, the counsel shall submit a statement of all necessary and reasonable fees and expenses of investigation, preparation and presentation and, if counsel was appointed by the court, a statement of all necessary and reasonable fees and expenses for legal representation, supported by appropriate receipts or vouchers and certified by the counsel to be true and accurate.
(5) In a county or justice court, the total fees and expenses payable under this section must be submitted to the court by counsel or other providers and are subject to the review of the court. The court shall certify that such amount is fair reimbursement for fees and expenses for representation in the case as provided in subsection (6) of this section. Upon certification and any verification as provided under subsection (6) of this section, the amount of the fees and expenses approved by the court and not already paid shall be paid by the county.
(6) In a county or justice court, the court shall certify to the administrative authority responsible for paying fees and expenses under this section that the amount for payment is reasonable and that the amount is properly payable out of public funds.
(7) In a circuit court, the total fees and expenses payable under this section must be submitted to and are subject to review by the public defense services executive director. The public defense services executive director shall determine whether the amount is necessary, reasonable and properly payable from public funds for fees and expenses for representation in the case as provided by the policies, procedures, standards and guidelines of the Public Defense Services Commission. The public defense services executive director shall pay the amount of the fees and expenses determined necessary, reasonable and properly payable out of public funds. The court shall provide any information identified and requested by the public defense services executive director as needed for audit, statistical or any other purpose pertinent to ensure the proper disbursement of state funds or pertinent to the provision of appointed counsel compensated at state expense.
(8) If the public defense services executive director denies, in whole or in part, fees and expenses submitted for review and payment, the person who submitted the payment request may appeal the decision to the presiding judge of the circuit court. The presiding judge or the designee of the presiding judge shall review the public defense services executive director’s decision for abuse of discretion. The decision of the presiding judge or the designee of the presiding judge is final.
(9) The following may not be disclosed to the district attorney prior to the conclusion of a case:
(a) Requests and administrative or court orders for preauthorization to incur nonroutine fees and expenses in the investigation, preparation and presentation of the case; and
(b) Billings for such fees and expenses submitted by counsel or other providers.
(10) Notwithstanding subsection (9) of this section, the total amount of moneys determined to be necessary and reasonable for nonroutine fees and expenses may be disclosed to the district attorney at the conclusion of the trial in the circuit court.
[(10)] (11) As used in this section unless the context requires otherwise, “counsel” includes a legal advisor appointed under ORS 135.045.
SECTION 44. ORS 138.500, as amended by section 29, chapter 962, Oregon Laws 2001, and section 7 of this 2003 Act, is amended to read:
138.500. (1) If a defendant in a criminal action or a petitioner in a proceeding pursuant to ORS 138.510 to 138.680 wishes to appeal from an appealable adverse final order or judgment of a circuit court and if the person is without funds to employ suitable counsel possessing skills and experience commensurate with the nature and complexity of the case for the appeal, the person may request the circuit court from which the appeal is or would be taken to appoint counsel to represent the person on appeal. The following apply to a request under this subsection:
(a) The request shall be in writing and shall be made within the time during which an appeal may be taken or, if the notice of appeal has been filed, at any time thereafter. The request shall include a brief statement of the assets, liabilities and income in the previous year of the person unless the court already determined the person to be financially eligible for appointed counsel at state expense for purposes of the specific case, in which instance, the written request need only so indicate. However, if a request relies on a court’s previous determination that the person is financially eligible, the court, in its discretion, may require the person to submit a new statement of assets, liabilities and income.
(b) If, based upon a request under paragraph (a) of this subsection, the court finds that petitioner or defendant previously received the services of appointed counsel or currently is without funds to employ suitable counsel for an appeal, the court shall appoint counsel to represent petitioner or defendant on the appeal.
(2)(a) Notwithstanding subsection (1) of this section, when a defendant has been sentenced to death, the request for appointed counsel shall be made to the Supreme Court. The Supreme Court shall appoint suitable counsel to represent the defendant on the appeal.
(b) After the notice of appeal has been filed, the Court of Appeals has concurrent authority to appoint or substitute counsel or appoint or substitute a legal advisor for the defendant under ORS 138.504.
(c) The Supreme Court has concurrent authority to appoint or substitute counsel or appoint or substitute a legal advisor for the defendant under ORS 138.504 in connection with review of a Court of Appeals decision under ORS 2.520.
(d) Neither the Court of Appeals nor the Supreme Court may substitute one appointed counsel for another under paragraph (b) or (c) of this subsection except pursuant to the policies, procedures, standards and guidelines of the Public Defense Services Commission.
(3) Whenever a defendant in a criminal action or a petitioner in a proceeding pursuant to ORS 138.510 to 138.680 has filed a notice of appeal from an appealable adverse final order or judgment of a circuit court and the person is without funds to pay for a transcript, or portion thereof, necessary to present adequately the case upon appeal, the person may request the public defense services executive director to have the transcript, or portion thereof, furnished to the person. The following apply to a request under this subsection:
(a) The request shall be in writing and, shall include a brief statement of the assets, liabilities and income in the previous year of the person.
(b) If, based upon a request under paragraph (a) of this subsection, the public defense services executive director finds that the person is unable to pay for the transcript, the public defense services executive director shall have furnished to the person that portion of the transcript as may be material to the decision on appeal, if the public defense services executive director finds that the transcript or portion thereof is necessary.
(c) The cost of the transcript under paragraph (b) of this subsection shall be in the amount prescribed in ORS 21.470 and paid for as provided by the policies, procedures, standards and guidelines of the Public Defense Services Commission.
(4) After submission of the original brief by counsel, the public defense services executive director shall determine the cost of briefs and any other expenses of appellant, except transcripts, necessary to appellate review and a reasonable amount of compensation for counsel appointed under this section. Compensation payable to appointed counsel shall be as established under ORS 151.216. On any review by the Supreme Court of the judgment of the Court of Appeals a person for whom counsel has been appointed shall by similar procedure recover the cost of briefs, any other expense of the review and compensation for counsel.
(5) Costs, expenses and compensation determined by the public defense services executive director under subsection (4) of this section shall be paid by the public defense services executive director from funds available for that purpose.
(6) If the public defense services executive director denies, in whole or in part, costs, expenses and compensation submitted for review and payment, the person who submitted the payment request may appeal the decision to the Chief Judge of the Court of Appeals, if the appeal is in the Court of Appeals, or to the Chief Justice of the Supreme Court, if the appeal is in the Supreme Court. The Chief Judge, Chief Justice or the designee of the Chief Judge or Chief Justice, as appropriate, shall review the public defense services executive director’s decision for abuse of discretion. The decision of the Chief Judge, the Chief Justice or the designee of the Chief Judge or Chief Justice is final.
(7) The provisions of this section shall apply in favor of the defendant in a criminal action or the petitioner in a proceeding pursuant to ORS 138.510 to 138.680 when the person is respondent in an appeal taken by the state in a criminal action or by the defendant in a proceeding pursuant to ORS 138.510 to 138.680.
(8) As used in subsection (4) of this section, “counsel” includes a legal advisor appointed under ORS 138.504.
SECTION 45. ORS 138.590, as amended by section 30, chapter 962, Oregon Laws 2001, and section 8 of this 2003 Act, is amended to read:
138.590. (1) Any petitioner who is unable to pay the expenses of a proceeding pursuant to ORS 138.510 to 138.680 or to employ suitable counsel possessing skills and experience commensurate with the nature of the conviction and complexity of the case for the proceeding may proceed as a financially eligible person pursuant to this section upon order of the circuit court in which the petition is filed.
(2) If the petitioner wishes to proceed as a financially eligible person, the person shall file with the petition an affidavit stating inability to pay the expenses of a proceeding pursuant to ORS 138.510 to 138.680, including, but not limited to, the filing fee required by ORS 138.560, or to employ suitable counsel for such a proceeding. The affidavit shall contain a brief statement of the petitioner’s assets and liabilities and income during the previous year. If the circuit court is satisfied that the petitioner is unable to pay such expenses or to employ suitable counsel, it shall order that the petitioner proceed as a financially eligible person. If the court finds that a petitioner who has been sentenced to death is not competent to decide whether to accept or reject the appointment of counsel, the court shall appoint counsel to represent the petitioner. However, when the Circuit Court for Marion County orders petitioner’s case transferred to another circuit court as provided in ORS 138.560 (4), the matter of petitioner’s proceeding as a financially eligible person shall be determined by the latter court.
(3) If a petitioner who has been sentenced to death qualifies for the appointment of counsel under this section but rejects the appointment, the court shall determine, after a hearing if necessary, whether the petitioner rejected the offer of counsel and made the decision with an understanding of its legal consequences. The court shall make appropriate findings on the record.
(4) In the order to proceed as a financially eligible person, the circuit court shall appoint suitable counsel to represent petitioner. Counsel so appointed shall represent petitioner throughout the proceedings in the circuit court. The court may not substitute one appointed counsel for another except pursuant to the policies, procedures, standards and guidelines of the Public Defense Services Commission.
(5) If counsel appointed by the circuit court determines that the petition as filed by petitioner is defective, either in form or in substance, or both, counsel may move to amend the petition within 15 days following counsel’s appointment, or within a further period as the court may allow. The amendment shall be permitted as of right at any time during this period. If appointed counsel believes that the original petition cannot be construed to state a ground for relief under ORS 138.510 to 138.680, and cannot be amended to state a ground for relief, counsel shall, in lieu of moving to amend the petition, inform the petitioner and notify the circuit court of counsel’s belief by filing an affidavit stating the belief and the reasons therefor with the clerk of the circuit court. This affidavit does not constitute a ground for denying the petition prior to a hearing upon its sufficiency, but the circuit court may consider the affidavit in deciding upon the sufficiency of the petition at the hearing.
(6) When a petitioner has been ordered to proceed as a financially eligible person, the expenses which are necessary for the proceedings upon the petition in the circuit court and the compensation to appointed counsel for petitioner as provided in this subsection shall be paid by the public defense services executive director from funds available for the purpose. At the conclusion of proceedings on a petition pursuant to ORS 138.510 to 138.680, the public defense services executive director shall determine and pay, as provided by the policies, procedures, standards and guidelines of the Public Defense Services Commission, the amount of expenses of petitioner and compensation for the services of appointed counsel in the proceedings in the circuit court.
(7) If the public defense services executive director denies, in whole or in part, expenses and compensation submitted for review and payment, the person who submitted the payment request may appeal the decision to the presiding judge of the circuit court. The presiding judge or the designee of the presiding judge shall review the public defense services executive director’s decision for abuse of discretion. The decision of the presiding judge or the designee of the presiding judge is final.
(8)(a) When a petitioner has been authorized to proceed as a financially eligible person, all court fees in the circuit court, except for the filing fee required by ORS 138.560, are waived.
(b) When a petitioner is allowed to file a petition without payment of the fee required by ORS 138.560 due to inability to pay, the fee is not waived but may be drawn from, or charged against, the petitioner’s trust account if the petitioner is an inmate in a correctional facility.
(9) Notwithstanding any other provision of this chapter, a court may not appoint as counsel for a petitioner who has been sentenced to death a counsel who previously represented the petitioner at trial or on automatic and direct review in the case resulting in the death sentence unless the petitioner and the counsel expressly request continued representation.
SECTION 46. ORS 419B.195, as amended by section 43, chapter 962, Oregon Laws 2001, and section 9 of this 2003 Act, is amended to read:
419B.195. (1) If the child, the parent or guardian requests counsel for the child but is without sufficient financial means to employ suitable counsel possessing skills and experience commensurate with the nature of the petition and the complexity of the case, the court may appoint suitable counsel to represent the child at state expense if the child is determined to be financially eligible under the policies, procedures, standards and guidelines of the Public Defense Services Commission. Whenever requested to do so, the court shall appoint counsel to represent the child in a case filed pursuant to ORS 419B.100. The court may not substitute one appointed counsel for another except pursuant to the policies, procedures, standards and guidelines of the Public Defense Services Commission.
(2) Upon presentation of the order of appointment under this section by the attorney for the child, any agency, hospital, school organization, division or department of the state, doctor, nurse or other health care provider, psychologist, psychiatrist, police department or mental health clinic shall permit the attorney to inspect and copy any records of the child or children involved in the case, without the consent of the child or children or parents. This subsection does not apply to records of a police agency relating to an ongoing investigation prior to charging.
SECTION 47. ORS 419B.205, as amended by section 46, chapter 962, Oregon Laws 2001, and section 11 of this 2003 Act, is amended to read:
419B.205. (1) Counsel shall be appointed for the parent or legal guardian whenever the nature of the proceedings and due process so require, and when the parent or legal guardian has been determined by the court to be eligible to receive appointed counsel under the standard in ORS 135.050 or the policies, procedures, standards and guidelines adopted under ORS 151.216. In deciding whether to appoint counsel under this section, the court shall consider the following factors:
[(1)] (a) The duration and degree of invasiveness of the interference with the parent-child relationship that possibly could result from the proceeding;
[(2)] (b) The complexity of the issues and evidence;
[(3)] (c) The nature of allegations and evidence contested by the parent or legal guardian; and
[(4)] (d) The effect the facts found or the disposition in the proceeding may have on later proceedings or events, including but not limited to termination of parental rights or criminal proceedings.
(2) The court may not substitute one appointed counsel for another except pursuant to the policies, procedures, standards and guidelines adopted under ORS 151.216.
SECTION 48. ORS 419C.200, as amended by section 49, chapter 962, Oregon Laws 2001, and section 12 of this 2003 Act, is amended to read:
419C.200. (1) If the youth, the parent or guardian requests counsel for the youth but is without sufficient financial means to employ suitable counsel possessing skills and experience commensurate with the nature of the petition and the complexity of the case, the court may appoint suitable counsel to represent the youth at state expense if the youth is determined to be financially eligible under the policies, procedures, standards and guidelines of the Public Defense Services Commission. Whenever requested to do so, the court shall appoint counsel to represent the youth in every case filed pursuant to ORS 419C.005 in which the youth would be entitled to appointed counsel if the youth were an adult charged with the same offense. The court may not substitute one appointed counsel for another except pursuant to the policies, procedures, standards and guidelines of the Public Defense Services Commission.
(2) Upon presentation of the order of appointment under this section by the attorney for the youth, any agency, hospital, school organization, division or department of the state, doctor, nurse or other health care provider, psychologist, psychiatrist, police department or mental health clinic shall permit the attorney to inspect and copy any records of the youth or youths involved in the case, without the consent of the youth or youths or parents. This subsection does not apply to records of a police agency relating to an ongoing investigation prior to charging.
SECTION 49. ORS 135.050, as amended by section 25, chapter 962, Oregon Laws 2001, is amended to read:
135.050. (1) Suitable counsel for a defendant shall be appointed by a municipal, county or justice court if:
(a) The defendant is before a court on a matter described in subsection (5) of this section;
(b) The defendant requests aid of counsel;
(c) The defendant provides to the court a written and verified financial statement; and
(d) It appears to the court that the defendant is financially unable to retain adequate representation without substantial hardship in providing basic economic necessities to the defendant or the defendant’s dependent family.
(2) Suitable counsel for a defendant shall be appointed by a circuit court if:
(a) The defendant is before the court on a matter described in subsection (5) of this section;
(b) The defendant requests aid of counsel;
(c) The defendant provides to the court a written and verified financial statement; and
(d)(A) The defendant is determined to be financially eligible under ORS 151.485 and the standards established by the Public Defense Services Commission under ORS 151.216; or
(B) The court finds, on the record, substantial and compelling reasons why the defendant is financially unable to retain adequate representation without substantial hardship in providing basic economic necessities to the defendant or the defendant’s dependent family despite the fact that the defendant does not meet the financial eligibility standards established by the commission.
(3) Appointed counsel [shall] may not be denied to any defendant merely because the defendant’s friends or relatives have resources adequate to retain counsel or because the defendant has deposited or is capable of depositing security for release. However, appointed counsel may be denied to a defendant if the defendant’s spouse has adequate resources which the court determines should be made available to retain counsel.
(4) The defendant’s financial statement under subsection (1) or (2) of this section shall include, but not be limited to:
(a) A list of bank accounts in the name of defendant or defendant’s spouse, and the balance in each;
(b) A list of defendant’s interests in real property and those of defendant’s spouse;
(c) A list of automobiles and other personal property of significant value belonging to defendant or defendant’s spouse;
(d) A list of debts in the name of defendant or defendant’s spouse, and the total of each; and
(e) A record of earnings and other sources of income in the name of defendant or defendant’s spouse, and the total of each.
(5) Counsel must be appointed for a defendant who meets the requirements of subsection (1) or (2) of this section and who is before a court on any of the following matters:
(a) Charged with a crime.
(b) For a hearing to determine whether an enhanced sentence should be imposed when such proceedings may result in the imposition of a felony sentence.
(c) For extradition proceedings under the provisions of the Uniform Criminal Extradition Act.
(d) For any proceeding concerning an order of probation, including but not limited to the revoking or amending thereof.
(6) Unless otherwise ordered by the court, the appointment of counsel under this section shall continue during all criminal proceedings resulting from the defendant’s arrest through acquittal or the imposition of punishment. The court having jurisdiction of the case may not substitute one appointed counsel for another [at any stage of the proceedings when the interests of justice require such substitution] except pursuant to the policies, procedures, standards and guidelines of the Public Defense Services Commission under ORS 151.216.
(7) If, at any time after the appointment of counsel, the court having jurisdiction of the case finds that the defendant is financially able to obtain counsel, the court may terminate the appointment of counsel. If, at any time during criminal proceedings, the court having jurisdiction of the case finds that the defendant is financially unable to pay counsel whom the defendant has retained, the court may appoint counsel as provided in this section.
(8) The court may order the defendant in a circuit court to pay to the Public Defense Services Account in the General Fund, through the clerk of the court, in full or in part the administrative costs of determining the eligibility of the defendant for appointed counsel and the costs of the legal and other services that are related to the provision of appointed counsel under ORS 151.487, 151.505 or 161.665.
(9) In addition to any criminal prosecution, a civil proceeding may be initiated by any public body which has expended moneys for the defendant’s legal assistance within two years of judgment if the defendant was not qualified in accordance with subsection (1) or (2) of this section for legal assistance.
(10) The civil proceeding shall be subject to the exemptions from execution as provided for by law.
(11) As used in this section unless the context requires otherwise, “counsel” includes a legal advisor appointed under ORS 135.045.
SECTION 50. ORS 419A.211, as amended by section 56, chapter 962, Oregon Laws 2001, is amended to read:
419A.211. (1) If the child, parent or guardian is determined to be entitled to, and financially eligible for, appointment of counsel at state expense in an appeal as provided in ORS 419A.200 and 419A.208, the court, upon request of the person or upon its own motion, shall appoint suitable counsel to represent the person. Counsel appointed by the court shall be paid compensation determined by the public defense services executive director as provided in ORS 135.055 if the circuit court is the appellate court or as provided in ORS 138.500 if the Court of Appeals or the Supreme Court is the appellate court. The court may not substitute one appointed counsel for another except pursuant to the policies, procedures, standards and guidelines of the Public Defense Services Commission.
(2)(a) When the court appoints counsel to represent the child, it may order the parent, if able, or guardian of the estate, if the estate is able, to pay to the Public Defense Services Account in the General Fund, through the clerk of the court, in full or in part the administrative costs of determining the ability of the parents or estate to pay for legal services and the costs of the legal and other services that are related to the provision of appointed counsel.
(b) The test of the parent’s or estate’s ability to pay costs under paragraph (a) of this subsection is the same test as applied to appointment of counsel for defendants under ORS 151.216. If counsel is provided at state expense, the court shall apply this test in accordance with the guidelines adopted by the Public Defense Services Commission under ORS 151.485.
(c) If counsel is provided at state expense, the court shall determine the amount the parents or estate is required to pay for the costs of administrative, legal and other services related to the provision of appointed counsel in the same manner as this amount is determined under ORS 151.487.
(d) The court’s order of payment is enforceable in the same manner as an order of support under ORS 419B.408 and 419C.600.
(3) When the court appoints counsel and the child, parent or guardian has been determined to be entitled to, and financially eligible for, appointed counsel at state expense, the compensation for counsel and costs and expenses necessary to the appeal shall be determined and paid as provided in ORS 135.055 if the circuit court is the appellate court or as provided in ORS 138.500 if the Court of Appeals or the Supreme Court is the appellate court.
SECTION 51. The amendments to ORS 135.050, 135.055, 138.500, 138.590, 151.216, 419A.211, 419B.195, 419B.205 and 419C.200 by sections 42 to 50 of this 2003 Act become operative on January 1, 2004.
SECTION 52. This 2003 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2003 Act takes effect July 1, 2003.
Approved by the Governor June 24, 2003
Filed in the office of Secretary of State June 24, 2003
Effective date July 1, 2003
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