Chapter 255
AN ACT
HB 2869
Relating to sheriffs; creating new
provisions; amending ORS 18.758, 105.135, 105.156, 107.437, 107.720, 107.723,
107.732, 124.022, 124.030, 163.741, 206.050, 419B.845 and 419B.846 and ORCP 9
C; and declaring an emergency.
Be It Enacted by the People of
the State of
SECTION 1. ORS 18.758 is amended to read:
18.758. (1) A sheriff shall sell property under ORS 18.750 to 18.760 in
the same manner in which property is sold on execution. If the debtor owns only
part of the property, the sheriff shall sell the interest of the debtor in the
property. The date scheduled by the sheriff for the sale of the property
must be [conducted by the sheriff]:
(a) Within [15] 20 days after notice is sent
to the garnishee under ORS 18.755 (4), if the garnishee is directed to continue
to hold the property pending sale by the sheriff; or
(b) Within [15] 20 days after the property is
delivered to the sheriff, if the garnishee is directed to deliver the property
to the sheriff under ORS 18.755 (4).
(2) If the garnishor
notifies the sheriff that property should be released to the debtor, the
sheriff shall promptly release the property.
(3) If the garnishee
continues to hold property of the debtor pending sale of the property under ORS
18.750 to 18.760, within five days after the sale of property under this
section the sheriff shall advise the garnishee in writing of the identity of
the purchaser and that the purchaser is entitled to possession of the property
or to possession of the debtor’s interest in the property. If the property is a
debt owed to the debtor for which payment is not due or is subject to a
bailment, lease or security interest that has not yet expired or been satisfied
or released, the garnishee need not deliver the property to the purchaser until
five days after payment is due, the bailment or lease has expired, or the
indebtedness secured by the property is satisfied or the security interest is
released.
SECTION 2. The amendments to ORS 18.758 by section 1 of
this 2007 Act apply only to garnishments issued on or after the effective date
of this 2007 Act.
SECTION 3. ORS 105.135 is amended to read:
105.135. (1) Except as provided in this section, the summons shall be
served and returned as in other actions.
(2) At the time the
clerk collects the filing fee under ORS 105.130, the clerk shall enter the
first appearance date on the summons. That date shall be seven days after the
judicial day next following payment of filing fees unless no judge is available
for first appearance at that time, in which case the clerk may extend the first
appearance date for up to seven additional days. At the request of the
plaintiff, the clerk may enter a date more than seven days after the judicial
day next following payment of filing fees if a judge will be available.
(3) Notwithstanding ORCP
10, by the end of the judicial day next following the payment of filing fees:
(a) The clerk shall mail
a true copy of the summons and complaint by first class mail to the defendant
at the premises.
(b) The process server
shall serve the defendant with a true copy of the summons and complaint at the
premises by personal delivery to the defendant or, if the defendant is not
available for service, by attaching a true copy of the summons and complaint in
a secure manner to the main entrance to that portion of the premises of which
the defendant has possession.
(4) A sheriff may
serve a facsimile of a certified true copy of a summons and complaint that is
transmitted to the sheriff by a trial court administrator or another sheriff
using a telephonic facsimile communication device. A copy of the facsimile must
be attached to the sheriff’s return of service. Before transmitting a summons
and complaint to a sheriff under this subsection, the person sending the
facsimile must receive confirmation by telephone from the sheriff’s office that
a telephonic facsimile communication device is available and operating.
[(4)] (5) The process server shall indicate the manner in
which service was accomplished by promptly filing with the clerk a certificate
of service as provided by ORCP 7 F(2)(a).
[(5)] (6) In the case of premises to which ORS chapter 90
applies, the summons shall inform the defendant of the procedures, rights and
responsibilities of the parties as specified in ORS 105.137.
SECTION 4. ORS 105.156 is amended to read:
105.156. The writ of
execution of judgment of restitution referred to in ORS 105.151 must be in
substantially the following form:
______________________________________________________________________________
State of
) ss. EXECUTION
OF
) JUDGMENT OF
) RESTITUTION
County of ____ )
To the Sheriff:
This was an eviction
action for possession of the following premises:
___________________
___________________
(city)
___________________
(county)
Judgment was entered
that the plaintiff have restitution of the premises
and that the plaintiff may be entitled to court costs and disbursements.
In the name of the State
of
[If the defendant has not moved out of the premises by the end of the
four-day period or any delay requested by the plaintiff, whichever is later,
and if the plaintiff has paid all fees for enforcement of this execution, you
shall immediately make legal service of this writ and an eviction trespass
notice on the defendant. You shall remove the defendant and any other person
subject to the judgment, if present, from the premises and return possession of
the premises to the plaintiff.] You are ordered to enter the premises
and remove the defendant and any other individual present on the premises who is subject to the judgment and return possession of the
premises to the plaintiff. You may use all reasonable force that may be
necessary to enter the premises and remove individuals who are subject to the
judgment.
The plaintiff shall be
responsible for removing, storing and disposing of any personal property left
by the defendant on the premises following the removal of the defendant and the
return of possession of the premises, as provided by ORS 105.165.
DATED
this ___ day of ______, ___.
________________
Deputy
Court Administrator
________________
Plaintiff
________________
Address
________________
City/State/Zip
______________________________________________________________________________
SECTION 5. ORS 107.437 is amended to read:
107.437. (1) A person entitled to physical custody of a child may make an
ex parte application for an order of assistance to a court of any county:
(a) In which a child is
located if the person is entitled to the physical custody of the child under a
valid and current order issued in this state; or
(b) In which a valid and
current foreign custody order has been filed with a petition as provided in
subsection (3) of this section.
(2) The application must
include a certified copy of the custody order. The order of assistance may
direct a law enforcement agency having jurisdiction where the child is located
to use any reasonable means and force to deliver the child as directed by the
court, including directing forcible entry into specified premises. The
court may issue an order of assistance upon the sworn affidavit of the
applicant and a finding of the court that:
(a) The applicant is
entitled to physical custody of the child under a valid and current custody
order; and
(b) The child is being
held by another person in substantial violation of the custody order.
(3) When the application
for an order of assistance is made to a court in which the custody order has
been entered or registered, the applicant shall make the application in the
form of a motion. In all other cases, the applicant shall make the application
in the form of a petition. The court may not charge a filing fee for a motion
or petition filed under this section.
(4) The law enforcement
agency to which an order of assistance is directed shall make a return to the
court specifying whether the order was executed, and if so, a statement
reflecting the date on which the order was executed and any other information
required by the court in the order of assistance.
(5) A court may not
issue an order of assistance for the purpose of enforcing parenting time or
visitation rights.
(6) Except for
intentional torts committed outside the scope of the peace officer’s duties, a
peace officer is not civilly or criminally liable for any action taken in
recovering the custody of a child pursuant to an order issued under this
section.
SECTION 6. ORS 107.720 is amended to read:
107.720. (1)(a) Whenever
a restraining order, as authorized by ORS 107.095 (1)(c) or (d), 107.716 or
107.718 which includes a security amount and an expiration date pursuant to ORS
107.095, 107.716 or 107.718 and this section, is issued and the person to be
restrained has actual notice thereof, the clerk of the court or any other
person serving the petition and order shall deliver forthwith to a county sheriff
a true copy of the affidavit of proof of service on which it is stated that
personal service of the petition and order was served on the respondent, a copy
of the petition and a true copy of the order. If an order entered by the court
recites that the respondent appeared in person before the court, the necessity
for further service of the order is waived and an accompanying proof of service
is not necessary. Upon receipt of a true copy of [proof of service, when required, and a true copy of] the order
and completion of any required service, the county sheriff shall forthwith
enter the order into the Law Enforcement Data System maintained by the
Department of State Police and into the databases of the National Crime
Information Center of the United States Department of Justice. The sheriff
shall also provide the petitioner with a true copy of the proof of service.
Entry into the Law Enforcement Data System constitutes notice to all law
enforcement agencies of the existence of such order. Law enforcement agencies
shall establish procedures adequate to ensure that an officer at the scene of
an alleged violation of such order may be informed of the existence and terms
of such order. Such order shall be fully enforceable in any county or tribal
land in the state. The petitioner may elect to deliver documents personally to
a county sheriff or to have them delivered by a private person for entry into
the Law Enforcement Data System and the databases of the
(b) When a restraining
order has been entered into the Law Enforcement Data System and the databases
of the National Crime Information Center of the United States Department of
Justice under paragraph (a) of this subsection, a county sheriff shall
cooperate with a request from a law enforcement agency from any other
jurisdiction to verify the existence of the restraining order or to transmit a
copy of the order to the requesting jurisdiction.
(2)(a) A restraining
order shall remain in effect until the order expires or is terminated by court
order.
(b) When a restraining
order has been entered under ORS 107.718, the restraining order shall not be
terminated upon a motion for dismissal by the petitioner unless the motion is
notarized.
(3) In any situation
where a restraining order described in subsection (1) of this section is
terminated before the expiration date, the clerk of the court shall deliver
forthwith a true copy of the termination order to the county sheriff with whom
the original order was filed. Upon receipt of such termination order the county
sheriff shall promptly remove the original order from the Law Enforcement Data
System and the databases of the
(4) Pending a contempt
hearing for alleged violation of a restraining order issued pursuant to ORS
107.095 (1)(c) or (d), 107.716 or 107.718, a person arrested and taken into
custody pursuant to ORS 133.310 may be released as provided in ORS 135.230 to
135.290. Whenever such restraining order is issued, the issuing court shall set
a security amount for the violation of such order.
SECTION 7. ORS 107.723 is amended to read:
107.723. (1) A
sheriff may serve a restraining order under ORS 107.718 in the county in which
the sheriff was elected and in any other county that is adjacent to the county
in which the sheriff was elected.
(2) A sheriff may
serve and enter into the Law Enforcement Data System a facsimile of a certified
true copy of a restraining order under ORS 107.718 that was transmitted to the
sheriff by a trial court administrator or another sheriff using a telephonic
facsimile communication device. A copy of the facsimile must be attached to the
sheriff’s return of service. Before transmitting a restraining order to a
sheriff under this subsection, the person sending the facsimile must receive
confirmation by telephone from the sheriff’s office that a telephonic facsimile
communication device is available and operating.
SECTION 8. ORS 107.732 is amended to read:
107.732. (1) An order or
a modification to an order issued under ORS 107.700 to 107.735 that provides
for the custody of a child shall, when requested by the party awarded custody,
contain a provision ordering a peace officer to assist in recovering the
custody of the child and authorizing the use of any reasonable force necessary
to that end, including directing forcible entry into specified premises.
(2) An order under ORS
107.718 directing the sheriff to use any reasonable force necessary to enforce
the order authorizes the sheriff to make a forcible entry into the premises
specified in the order.
[(2)] (3) No peace officer shall be civilly or criminally
liable for any action taken in recovering the custody of a child pursuant to an
order issued under ORS 107.700 to 107.735, except for intentional torts outside
the scope of the peace officer’s duties.
SECTION 9. ORS 124.022 is amended to read:
124.022. (1) A
sheriff may serve a restraining order under ORS 124.020 in the county in which
the sheriff was elected and in any other county that is adjacent to the county
in which the sheriff was elected.
(2) A sheriff may
serve and enter into the Law Enforcement Data System a facsimile of a certified
true copy of a restraining order under ORS 124.020 that was transmitted to the
sheriff by a trial court administrator or another sheriff using a telephonic
facsimile communication device. A copy of the facsimile must be attached to the
sheriff’s return of service. Before transmitting a restraining order to a
sheriff under this subsection, the person sending the facsimile must receive
confirmation by telephone from the sheriff’s office that a telephonic facsimile
communication device is available and operating.
SECTION 10. ORS 124.030 is amended to read:
124.030. (1) Whenever a
restraining order, as authorized by ORS 124.015 or 124.020, that includes a
security amount and an expiration date pursuant to ORS 124.015 and 124.020 and
this section, is issued and the person to be restrained has actual notice
thereof, the clerk of the court or any other person serving the petition and
order shall deliver forthwith to a county sheriff a true copy of the affidavit
of proof of service on which it is stated that personal service of the petition
and order was served on the respondent, a copy of the petition and a true copy
of the order. If an order entered by the court recites that the respondent
appeared in person before the court, the necessity for further service of the
order is waived and an accompanying proof of service is not necessary. Upon
receipt of a true copy of [proof of
service, when required, and a true copy of] the order and completion of
any required service, the county sheriff shall forthwith enter the order
into the Law Enforcement Data System maintained by the Department of State
Police. Entry into the Law Enforcement Data System constitutes notice to all
law enforcement agencies of the existence of such order. Law enforcement
agencies shall establish procedures adequate to ensure that an officer at the
scene of an alleged violation of such order may be informed of the existence
and terms of such order. Such order shall be fully enforceable in any county in
the state. The petitioner or guardian petitioner may elect to deliver documents
personally to a county sheriff or to have them delivered by a private person
for entry into the Law Enforcement Data System.
(2)(a) A restraining
order shall remain in effect until the order expires or is terminated by court
order.
(b) When a restraining
order has been entered under ORS 124.020, the restraining order shall not be
terminated upon a motion for dismissal by the petitioner or guardian petitioner
unless the motion is notarized.
(3) In any situation
where a restraining order described in subsection (1) of this section is
terminated before the expiration date, the clerk of the court shall deliver
forthwith a true copy of the termination order to the county sheriff with whom
the original order was filed. Upon receipt of such termination order the county
sheriff shall promptly remove the original order from the Law Enforcement Data
System.
(4) Pending a contempt
hearing for an alleged violation of a restraining order issued pursuant to ORS
124.015 or 124.020, a person arrested and taken into custody pursuant to ORS
133.310 may be released as provided in ORS 135.230 to 135.290. Whenever such
restraining order is issued, the issuing court shall set a security amount for
the violation of such order.
SECTION 11. ORS 163.741 is amended to read:
163.741. (1) Whenever a
stalking protective order, as authorized by ORS 163.735 or 163.738, is issued
and the person to be restrained has actual notice thereof, the person serving
the order shall deliver forthwith to the county sheriff a true copy of the order
and an affidavit of proof of service on which it is stated that personal
service of the order was made on the respondent. If an order entered by the
court recites that the respondent appeared in person before the court, the
necessity for further service of the order is waived and accompanying proof of
service is not necessary. Upon receipt of [proof
of service, when required, and a true copy of] the order and completion
of any required service, the county sheriff shall forthwith enter the order
into the Law Enforcement Data System maintained by the Department of State
Police and into the databases of the National Crime Information Center of the
United States Department of Justice. The sheriff shall also provide the
complainant with a true copy of the proof of service. Entry into the Law
Enforcement Data System constitutes notice to all law enforcement agencies of
the existence of such order. Law enforcement agencies shall establish
procedures adequate to ensure that an officer at the scene of an alleged violation
of such order may be informed of the existence and terms of such order. Such
order shall be fully enforceable in any county in the state. The complainant
may elect to deliver documents personally to a county sheriff or to have them
delivered by a private person for entry into the Law Enforcement Data System
and the databases of the
(2) When a stalking
protective order has been entered into the Law Enforcement Data System and the
databases of the National Crime Information Center of the United States
Department of Justice under subsection (1) of this section, a county sheriff
shall cooperate with a request from a law enforcement agency from any other
jurisdiction to verify the existence of the stalking protective order or to
transmit a copy of the order to the requesting jurisdiction.
(3) When a stalking
protective order described in subsection (1) of this section is terminated by
order of the court, the clerk of the court shall deliver forthwith a true copy
of the termination order to the county sheriff with whom the original order was
filed. Upon receipt of the termination order, the county sheriff shall promptly
remove the original order from the Law Enforcement Data System and the
databases of the
SECTION 12. ORS 206.050 is amended to read:
206.050. (1) When an
officer finds, or has reason to apprehend, that resistance will be made to the
execution or service of any process, order or paper delivered to the officer
for execution or service, and authorized by law, the officer may command as
many [male] adult inhabitants
of the county of the officer as the officer may think proper and necessary to assist
the officer in overcoming the resistance, and if necessary, in seizing,
arresting and confining the resisters and their aiders and abettors, to be
punished according to law.
(2)
National guard members are exempt from any service commanded under subsection
(1) of this section while they continue to be active members.
SECTION 13. ORS 419B.845 is amended to read:
419B.845. (1)(a) When a
petition has been filed alleging that the child has been physically or sexually
abused, the court may enter an order restraining the alleged perpetrator of the
abuse from having contact with the child or attempting to contact the child and
requiring the alleged perpetrator to move from the household in which the child
resides. The court may issue a restraining order only if the court finds that:
(A) There is probable
cause to believe the abuse occurred and that the person to be restrained
committed the abuse; and
(B) The order is in the
best interest of the child.
(b) Upon finding that to
do so would aid in protecting the victim of the alleged abuse, the court may
enter, in addition to a restraining order described in paragraph (a) of this
subsection, other appropriate orders including, but not limited to, orders that
control contact between the alleged abuser and other children in the household.
(c) The court shall
include in an order entered under this subsection the following information
about the person to be restrained:
(A) Name;
(B) Address;
(C) Age and birth date;
(D) Race;
(E) Sex;
(F) Height and weight;
and
(G) Color of hair and
eyes.
(d) The court may
include in the order a provision that a peace officer accompany the restrained
person to the household when it is necessary for the restrained person to
remove personal property.
(2) If the court enters
an order under this section:
(a) The clerk of the
court shall provide without charge the number of certified true copies of the
petition and order necessary to effect service and shall have a true copy of
the petition and order delivered to the sheriff or other person qualified to
serve the order for service upon the person to be restrained; and
(b) The sheriff or other
person qualified to serve the order shall serve the person to be restrained
personally unless that person is present at the hearing. After accepting the
order, if the sheriff or other person cannot complete service within 10 days,
the sheriff or other person shall hold the order for future service and file a
return to the clerk of the court showing that service was not completed.
(3) Within 30 days after
an order is served under this section, the restrained person may file a written
request with the court and receive a court hearing on any portion of the order.
If the restrained person requests a hearing under this subsection:
(a) The clerk of the
court shall notify the parties and, if the restrained person is not a party,
the restrained person of the date and time of the hearing; and
(b) The court shall hold
the hearing within 21 days after the request and may cancel or modify the order.
(4) Upon receipt of [proof of service, when required, and a true
copy of] the order and completion of any required service, the
sheriff shall immediately enter the order into the Law Enforcement Data System
maintained by the Department of State Police. Entry into the Law Enforcement
Data System constitutes notice to all law enforcement agencies of the existence
of the order. Law enforcement agencies shall establish procedures adequate to
ensure that an officer at the scene of an alleged violation of the order may be
informed of the existence and terms of the order. The order shall be fully
enforceable in any county in this state.
(5) A restraining order
issued pursuant to this section remains in effect for a period of one year or
until the order is modified, amended or terminated by court order.
(6) A court that issued
a restraining order under this section may renew the order for a period of up
to one year if the court finds that there is probable cause to believe the
renewal is in the best interest of the child. The court may renew the order on
motion alleging facts supporting the required finding. If the renewal order is
granted, subsections (2) and (3) of this section apply.
(7) If a restraining
order issued pursuant to this section is terminated before its expiration date,
the clerk of the court shall promptly deliver a true copy of the termination
order to the sheriff. The sheriff shall promptly remove the original order from
the Law Enforcement Data System.
(8) Pending a contempt
hearing for alleged violation of a restraining order issued under this section,
a person arrested and taken into custody pursuant to ORS 133.310 may be
released as provided in ORS 135.230 to 135.290. Unless the order provides
otherwise, the security amount for release shall be $5,000.
(9) When a restraining
order entered under this section prohibits the restrained person from
contacting the protected person in writing, the restrained person does not
violate the restraining order by serving on the protected person a copy of a
notice of appeal of the restraining order or any other document required by law
to be served on the adverse party to an appeal if:
(a) Neither the
restrained person nor the protected person is represented by counsel;
(b) The restrained
person serves the document by mail; and
(c) The contents of the
document are not intended to harass or intimidate the protected person.
SECTION 14. ORS 419B.846 is amended to read:
419B.846.
(1) A sheriff may serve a restraining order under ORS 419B.845 in the
county in which the sheriff was elected and in any other county that is
adjacent to the county in which the sheriff was elected.
(2) A sheriff may
serve and enter into the Law Enforcement Data System a facsimile of a certified
true copy of a restraining order under ORS 419B.845 that was transmitted to the
sheriff by a trial court administrator or another sheriff using a telephonic
facsimile communication device. A copy of the facsimile must be attached to the
sheriff’s return of service. Before transmitting a restraining order to a
sheriff under this subsection, the person sending the facsimile must receive
confirmation by telephone from the sheriff’s office that a telephonic facsimile
communication device is available and operating.
SECTION 15. ORCP 9 C, as amended by the Council on Court
Procedures on December 9, 2006, is amended to read:
C
Filing; proof of service. Except as provided by section D of this
rule, all papers required to be served upon a party by section A of this rule
shall be filed with the court within a reasonable time after service. Except as
otherwise provided in Rule 7 and Rule 8, proof of service of all papers
required or permitted to be served may be by written acknowledgment of service,
by affidavit or declaration of the person making service, or by certificate of
an attorney. Such proof of service may be made upon the papers served or as a
separate document attached to the papers. Where service is made by telephonic
facsimile communication device or e-mail, proof of service shall be made by
affidavit or declaration of the person making service, or by certificate of an
attorney or sheriff. Attached to such affidavit, declaration, or
certificate shall be the printed confirmation of receipt of the message
generated by the transmitting machine, if facsimile communication is used. If
service is made by e-mail under section G of this rule, the person making
service must certify that he or she received confirmation that the message was
received, either by return e-mail, automatically generated message, telephonic
facsimile, or orally.
SECTION 16. This 2007 Act being necessary for the
immediate preservation of the public peace, health and safety, an emergency is
declared to exist, and this 2007 Act takes effect on its passage.
Approved by the Governor June 1, 2007
Filed in the office of Secretary of State June 1, 2007
Effective date June 1, 2007
__________