72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
HA to HB 2074
LC 956/HB 2074-5
HOUSE AMENDMENTS TO
HOUSE BILL 2074
By COMMITTEE ON JUDICIARY
May 13
On page 1 of the printed bill, line 2, after '84.064 ' insert
', 135.050'.
In line 5, after '293.875' insert ', 419A.211'.
On page 2, line 40, delete '161.365' and insert '161.346,
161.365, 161.385'.
On page 5, line 28, after 'must' insert 'be'.
On page 6, after line 26, insert:
' (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.'.
In line 27, delete '(8)' and insert '(9)'.
In line 32, delete '(9)' and insert '(10)'.
On page 7, delete line 45 and insert:
' (4) After submission of the original brief by counsel'.
On page 8, line 1, delete 'appeal to the court for decision'.
In line 10, after 'funds' insert 'available'.
After line 10, insert:
' (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.'.
In line 11, delete '(6)' and insert '(7)'.
In line 15, delete '(7)' and insert '(8)'.
On page 9, after line 16, insert:
' (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.'.
In line 17, delete '(7)(a)' and insert '(8)(a)'.
In line 22, delete '(8)' and insert '(9)'.
On page 12, delete lines 12 and 13.
On page 24, after line 6, insert:
' { + 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. + } ' .
In line 7, delete '42' and insert '52'.
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