75th OREGON LEGISLATIVE ASSEMBLY--2009 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 2174
House Bill 2682
Sponsored by COMMITTEE ON JUDICIARY
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 as
introduced.
Permits sureties to offer commercial security release.
Directs Director of Department of Consumer and Business
Services to adopt rules establishing commercial surety licensing
program.
A BILL FOR AN ACT
Relating to commercial security release; creating new provisions;
and amending ORS 135.230, 135.245, 135.255, 135.265, 135.270
and 135.280.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) As used in sections 1 and 2 of this 2009
Act, ' surety' has the meaning given that term in ORS 135.230.
(2) An insurer may not solicit, negotiate or execute an
undertaking of security release for a defendant except through a
surety who holds a surety license issued pursuant to section 2 of
this 2009 Act.
(3) Except as provided in subsection (4) of this section, a
person who is not licensed pursuant to section 2 of this 2009 Act
may not:
(a) Solicit, negotiate or execute an undertaking of security
release on behalf of an insurer.
(b) Claim to be or offer to provide the services of a surety.
(4) An unlicensed individual may act as a surety for a
defendant if no consideration is paid, directly or indirectly, by
any person in connection with a security release. + }
SECTION 2. { + The Director of the Department of Consumer and
Business Services shall establish by rule a program for licensing
sureties. + }
SECTION 3. ORS 135.230 is amended to read:
135.230. As used in ORS 135.230 to 135.290, unless the context
requires otherwise:
(1) 'Abuse' means:
(a) Attempting to cause or intentionally, knowingly or
recklessly causing physical injury;
(b) Intentionally, knowingly or recklessly placing another in
fear of imminent serious physical injury; or
(c) Committing sexual abuse in any degree as defined in ORS
163.415, 163.425 and 163.427.
(2) 'Conditional release' means a nonsecurity release which
imposes regulations on the activities and associations of the
defendant.
(3) 'Domestic violence' means abuse between family or household
members.
(4) 'Family or household members' means any of the following:
(a) Spouses.
(b) Former spouses.
(c) Adult persons related by blood or marriage.
(d) Persons cohabiting with each other.
(e) Persons who have cohabited with each other or who have been
involved in a sexually intimate relationship.
(f) Unmarried parents of a minor child.
(5) 'Magistrate' has the meaning provided for this term in ORS
133.030.
(6) 'Personal recognizance' means the release of a defendant
upon the promise of the defendant to appear in court at all
appropriate times.
(7) 'Primary release criteria' includes the following:
(a) The reasonable protection of the victim or public;
(b) The nature of the current charge;
(c) The defendant's prior criminal record, if any, and, if the
defendant previously has been released pending trial, whether the
defendant appeared as required;
(d) Any facts indicating the possibility of violations of law
if the defendant is released without regulations; and
(e) Any other facts tending to indicate that the defendant is
likely to appear.
(8) 'Release' means temporary or partial freedom of a defendant
from lawful custody before judgment of conviction or after
judgment of conviction if defendant has appealed.
(9) 'Release agreement' means a sworn writing by the defendant
stating the terms of the release and, if applicable, the amount
of security.
(10) 'Release decision' means a determination by a magistrate,
using primary and secondary release criteria, which establishes
the form of the release most likely to ensure the safety of the
public and the victim, the defendant's court appearance and that
the defendant does not engage in domestic violence while on
release.
(11) 'Secondary release criteria' includes the following:
(a) The defendant's employment status and history and financial
condition;
(b) The nature and extent of the family relationships of the
defendant;
(c) The past and present residences of the defendant;
(d) Names of persons who agree to assist the defendant in
attending court at the proper time; and
(e) Any facts tending to indicate that the defendant has strong
ties to the community.
(12) 'Security release' means a release conditioned on a
promise to appear in court at all appropriate times which is
secured by cash, stocks, bonds or real property.
(13) 'Surety' { - is one - } { + means a person + } who
executes a security release and { - binds oneself - } { + is
thereby bound + }to pay the security amount if the defendant
fails to comply with the release agreement { + and who does so:
(a) In exchange for no consideration; or
(b) In exchange for consideration pursuant to sections 1 and 2
of this 2009 Act + }.
SECTION 4. ORS 135.245 is amended to read:
135.245. (1) Except as provided in ORS 135.240, a person in
custody has the right to immediate security release or to be
taken before a magistrate without undue delay. If the person is
not released under ORS 135.270, or otherwise released before
arraignment, the magistrate shall advise the person of the right
of the person to a security release as provided in ORS 135.265.
(2) If a person in custody does not request a security release
at the time of arraignment, the magistrate shall make a release
decision regarding the person within 48 hours after the
arraignment.
(3) If the magistrate, having given priority to the primary
release criteria, decides to release a defendant or to set
security, the magistrate shall impose the least onerous condition
reasonably likely to ensure the safety of the public and the
victim and the person's later appearance and, if the person is
charged with an offense involving domestic violence, ensure that
the person does not engage in domestic violence while on release.
A person in custody, otherwise having a right to release, shall
be released upon the personal recognizance unless:
(a) Release criteria show to the satisfaction of the magistrate
that such a release is unwarranted; or
(b) Subsection (6) of this section applies to the person.
(4) Upon a finding that release of the person on personal
recognizance is unwarranted, the magistrate shall impose either
conditional release or security release.
(5)(a) At the release hearing:
(A) The district attorney has a right to be heard in relation
to issues relevant to the release decision; and
(B) The victim has the right:
(i) Upon request made within the time period prescribed in the
notice required by ORS 147.417, to be notified by the district
attorney of the release hearing;
(ii) To appear personally at the hearing; and
(iii) If present, to reasonably express any views relevant to
the issues before the magistrate.
(b) Failure of the district attorney to notify the victim under
paragraph (a) of this subsection or failure of the victim to
appear at the hearing does not affect the validity of the
proceeding.
(6) If a person refuses to provide a true name under the
circumstances described in ORS 135.060 and 135.065, the
magistrate may not release the person on personal recognizance or
on conditional release. The magistrate may release the person on
security release under ORS 135.265 except that the magistrate
shall require the person to deposit { + or cause a surety to
deposit for the person's benefit + } the full security amount set
by the magistrate.
(7) This section shall be liberally construed to carry out the
purpose of relying upon criminal sanctions instead of financial
loss to assure the appearance of the defendant.
SECTION 5. ORS 135.255 is amended to read:
135.255. (1) The defendant shall not be released from custody
unless { + :
(a) + } The defendant files with the clerk of the court in
which the magistrate is presiding a release agreement duly
executed by the defendant containing the conditions ordered by
the releasing magistrate { + ; + } or
{ + (b) The defendant + } deposits { + or causes a surety to
deposit for the defendant's benefit + } security in the amount
specified by the magistrate in accordance with ORS 135.230 to
135.290.
(2) A failure to appear as required by the release agreement
shall be punishable as provided in ORS 162.195 or 162.205.
(3) 'Custody' for purposes of a release agreement does not
include temporary custody under the citation procedures of ORS
133.055 to 133.076.
SECTION 6. ORS 135.265 is amended to read:
135.265. (1) If the defendant is not released on personal
recognizance under ORS 135.255, or granted conditional release
under ORS 135.260, or fails to agree to the provisions of the
conditional release, the magistrate shall set a security amount
that will reasonably assure the defendant's appearance. The
defendant shall execute the security release in the amount set by
the magistrate.
(2) The defendant shall execute a release agreement and deposit
with the clerk of the court before which the proceeding is
pending { + or cause a surety to deposit for the defendant's
benefit + } a sum of money equal to 10 percent of the security
amount, but in no event shall such deposit be less than $25. The
clerk shall issue a receipt for the sum deposited. Upon
depositing this sum { + or causing this sum to be deposited, + }
the defendant shall be released from custody subject to the
condition that the defendant appear to answer the charge in the
court having jurisdiction on a day certain and thereafter as
ordered by the court until discharged or final order of the
court. Once security has been given and a charge is pending or is
thereafter filed in or transferred to a court of competent
jurisdiction the latter court shall continue the original
security in that court subject to ORS 135.280 and 135.285. When
conditions of the release agreement have been performed and the
defendant has been discharged from all obligations in the cause,
the clerk of the court shall return to the person shown by the
receipt to have made the deposit, unless the court orders
otherwise, 85 percent of the sum which has been deposited and
shall retain as security release costs 15 percent, but not less
than $5 nor more than $200, of the amount deposited. The
interest that has accrued on the full amount deposited shall also
be retained by the clerk. The amount retained by the clerk of a
circuit court shall be paid over as directed by the State Court
Administrator for deposit in the Criminal Fine and Assessment
Account created under ORS 137.300. The amount retained by a
justice of the peace shall be deposited in the county treasury.
The amount retained by the clerk of a municipal court shall be
deposited in the municipal corporation treasury. At the request
of the defendant { + , + } the court may order whatever amount is
repayable to { + the + } defendant { + personally + } from
{ - such - } { + the + } security amount to be paid to
{ + the + } defendant's attorney of record.
(3) Instead of the security deposit provided for in subsection
(2) of this section the defendant may deposit with the clerk of
the court an amount equal to the security amount in cash, stocks,
bonds, or real or personal property situated in this state with
equity not exempt owned by the defendant or sureties worth double
the amount of security set by the magistrate. The stocks, bonds,
real or personal property shall in all cases be justified by
affidavit. The magistrate may further examine the sufficiency of
the security as the magistrate considers necessary.
SECTION 7. ORS 135.270 is amended to read:
135.270. When a security amount has been set by a magistrate
for a particular offense or for a defendant's release, any person
designated by the magistrate may take the security and release
the defendant to appear in accordance with the conditions of the
release agreement. The person designated by the magistrate shall
give a receipt to the defendant { + and, if applicable, to a
surety acting on behalf of the defendant + } for the security so
taken and within a reasonable time deposit the security with the
clerk of the court having jurisdiction of the offense.
SECTION 8. ORS 135.280 is amended to read:
135.280. (1) Upon failure of a person to comply with any
condition of a release agreement or personal recognizance, the
court having jurisdiction may, in addition to any other action
provided by law, issue a warrant for the arrest of the person at
liberty upon a personal recognizance, conditional or security
release.
(2) A warrant issued under subsection (1) of this section by a
municipal judge may be executed by any peace officer authorized
to execute arrest warrants.
(3) If the defendant does not comply with the conditions of the
release agreement, the court having jurisdiction shall enter an
order declaring the entire security amount to be forfeited.
Notice of the order of forfeiture shall be given forthwith by
personal service, by mail or by such other means as are
reasonably calculated to bring to the attention of the defendant
and, if applicable, of the sureties the order of forfeiture. If,
within 30 days after the court declares the forfeiture, the
defendant does not appear or satisfy the court having
jurisdiction that appearance and surrender by the defendant was,
or still is, impossible and without fault of the defendant, the
court shall enter judgment for the state, or appropriate
political subdivision thereof, against the defendant and, if
applicable, the sureties for the entire security amount set under
ORS 135.265 and the costs of the proceedings. At any time before
or after entry of the judgment, the defendant or the sureties may
apply to the court for a remission of the forfeiture or to modify
or set aside the judgment. The court, upon good cause shown, may
remit the forfeiture or any part thereof or may modify or set
aside the judgment as in other criminal cases, except the portion
of the security amount that the court ordered to be applied to
child support under subsection (4) of this section, as the court
considers reasonable under the circumstances of the case. The
court shall adopt procedures to ensure that the amount deposited
under ORS 135.265 is available for a reasonable period of time
for disposition under subsection (4) of this section.
(4) After entry of a judgment for the state, the court, upon a
motion filed under ORS 25.715, may order that a portion of the
security amount be applied to any unsatisfied child support award
owed by the defendant and to provide security for child support
payments in accordance with ORS 25.230. The portion of the
security amount that may be applied to the child support award:
(a) Is limited to the amount deposited under ORS 135.265;
(b) May not exceed 66 percent of the entire security amount set
under ORS 135.265; and
(c) Does not reduce the money award in the judgment entered
under subsection (3) of this section that is owed to the state.
(5) When judgment is entered in favor of the state, or any
political subdivision of the state, on any security given for a
release, the judgment may be enforced as a judgment in a civil
action. If entered in circuit court, the judgment shall be
entered in the register, and the clerk of the court shall note in
the register that the judgment creates a judgment lien. The
district attorney, county counsel or city attorney may have
execution issued on the judgment and deliver same to the sheriff
to be executed by levy on the deposit or security amount made in
accordance with ORS 135.265, or may collect the judgment as
otherwise provided by law. The proceeds of any execution or
collection shall be used to satisfy the judgment and costs and
paid into the treasury of the municipal corporation wherein the
security was taken if the offense was defined by an ordinance of
a political subdivision of this state, or paid into the treasury
of the county wherein the security was taken if the offense was
defined by a statute of this state and the judgment was entered
by a justice court, or paid over as directed by the State Court
Administrator for deposit in the Criminal Fine and Assessment
Account created under ORS 137.300, if the offense was defined by
a statute of this state and the judgment was entered by a circuit
court. The provisions of this section shall not apply to base
fine amounts deposited upon appearance under ORS 153.061.
(6) When the judgment of forfeiture is entered, the security
deposit or deposit with the clerk is, by virtue of the judgment
alone and without requiring further execution, forfeited to and
may be kept by the state or its appropriate political
subdivision. Except as provided in subsection (4) of this
section, the clerk shall reduce, by the value of the deposit so
forfeited, the debt remaining on the judgment and shall cause the
amount on deposit to be transferred to the revenue account of the
state or political subdivision thereof entitled to receive the
proceeds of execution under this section.
(7) The stocks, bonds, personal property and real property
shall be sold in the same manner as in execution sales in civil
actions and the proceeds of such sale shall be used to satisfy
all court costs, prior encumbrances, if any, and from the balance
a sufficient amount to satisfy the judgment shall be paid into
the treasury of the municipal corporation wherein the security
was taken if the offense was defined by an ordinance of a
political subdivision of this state, or paid into the treasury of
the county wherein the security was taken if the offense was
defined by a statute of this state and the judgment was entered
by a justice court, or deposited in the General Fund available
for general governmental expenses if the offense was defined by a
statute of this state and the judgment was entered by a circuit
court. The balance shall be returned to the owner { + of the
security + }. The real property sold may be redeemed in the same
manner as real estate may be redeemed after judicial or execution
sales in civil actions.
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