72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 956
A-Engrossed
House Bill 2074
Ordered by the House May 13
Including House Amendments dated May 13
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Committee on
Judiciary for Public Defense Services Commission)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Requires Public Defense Services Commission to submit report to
Legislative Assembly biennially. Provides that senior judges may
serve on commission. Prohibits person who primarily engages in
providing public defense services from being member of
commission. Makes other changes to provisions dealing with
commission. Modifies provisions relating to preauthorization of
nonroutine expenses.
{ + Provides for appeal if fees and expenses are denied in
whole or in part. Provides for peer review of certain nonroutine
fees and expenses. Establishes complaint process relating to
expenses. Allows contracts with certain out-of-state experts.
Limits substitution of appointed counsel. + }
Declares emergency, effective July 1, 2003.
A BILL FOR AN ACT
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. + }
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