427.265 Court
to advise person of nature of proceeding and rights; appointment of legal
counsel. (1) At
the time that a person who is alleged to have an intellectual disability and to
be in need of commitment for residential care, treatment and training is
brought before the court, the court shall advise the person of the reason for
being brought before the court, the nature of the proceedings and the possible
results of the proceedings. The court shall also advise the person of the right
to subpoena witnesses and to suitable legal counsel possessing skills and
experience commensurate with the nature of the allegations and complexity of
the case during the proceedings, and that if the person does not have funds
with which to retain suitable legal counsel, the court shall appoint such legal
counsel to represent the person. If the person does not request legal counsel,
the legal guardian, relative or friend may request the assistance of legal
counsel on behalf of the person.
(2) If no request
for legal counsel is made, the court shall appoint suitable legal counsel.
(3) If the person
is unable to afford legal counsel, the court, if the matter is before a county
or justice court, or the executive director of the Oregon Public Defense
Commission, if the matter is before the circuit court, shall determine and
allow, as provided in ORS 135.055, the reasonable expenses of the person and
compensation for legal counsel. The expenses and compensation so allowed by a
county court shall be paid by the county of residence of the person. The
expenses and compensation determined by the executive director shall be paid by
the executive director from funds available for the purpose. In all cases legal
counsel shall be present at the hearing and may examine all witnesses offering
testimony, and otherwise represent the person.
(4) The court
may, for good cause, postpone the hearing for not more than 72 hours to allow
preparation for the hearing and order the continuation of detention authorized
under ORS 427.255 during a postponement, if requested by the person, the legal
counsel, the guardian of the person or an examiner or on the court’s own
motion. [1979 c.683 §20; 1979 c.867 §13; 1981 s.s. c.3 §135; 2001 c.962 §71;
2011 c.658 §16; 2023 c.281 §73; 2023 c.339 §7; 2025 c.2 §21]
Notes of Decisions
Cited in
9
cases (
4 in the last 5 years), 1997–2024 · leading case:
State v. S. R.-N., 506 P.3d 492 (Or. Ct. App. 2022).
State v. S. R.-N., 506 P.3d 492 (Or. Ct. App. 2022).
· cites it 3× “245(2) (“the court shall cause a citation to issue” that includes specified information and rights); and (3) the court failed to advise him of the nature of the proceedings, as required by ORS 427.265(1). Held: Given the record and appellant’s arguments on appeal, the court…”
State v. C. P., 486 P.3d 845 (Or. Ct. App. 2021).
· cites it 2× “At the beginning of the hearing, the court advised appellant, who was repre- sented by legal counsel throughout the hearing, of her right to legal counsel and about the consequences of the proceed- ing as required by ORS 427.265. At the conclusion of the hearing, the court…”
State v. M. M. -B., 549 P.3d 600 (Or. Ct. App. 2024).
· cites it 4× “In her sole assignment of error, appellant contends that the trial court plainly erred by failing to pro- vide the complete advice of rights required by ORS 427.265. Specifically, she argues that the court plainly erred when it advised her that she had the right to an attorney…”
State v. M. L. L. (In re M. L. L.), 414 P.3d 923 (Or. Ct. App. 2018).
· cites it 4× “She contends that the trial court plainly erred by failing to advise her of all of the possible results of the proceedings, in violation of ORS 427.265(1). 1 The state concedes that the court plainly erred.”
State v. Neal, 946 P.2d 367 (Or. Ct. App. 1997).
“The statute provides that the “allegedly mentally retarded person shall have the right to cross-examine all witnesses, the investigator and the representative.” Contrary to the state’s view, the rule is not merely evidentiary.”
State v. K. B. (In re K. B.), 435 P.3d 809 (Or. Ct. App. 2019).
· cites it 3× “Appellant contends that the trial court plainly erred by failing to advise her of all the possible results of the proceedings as required by ORS 427.265(1), including the possibility of conditional release or voluntary treatment.”
State v. H. C., 335 Or. App. 20 (Or. Ct. App. 2024).
· cites it 4× “” See ORS 427.265 (“At the time that a person who is alleged to have an intellectual disability and to be in need of commitment * * * is brought before the court, the court shall advise the person of the reason for being brought before the court, the nature of the proceedings…”
State v. R. C.-R. (In re R. C.-R.), 425 P.3d 508 (Or. Ct. App. 2018).
· cites it 2× “He contends that the trial court plainly erred by failing to advise him of all of his rights under ORS 427.265(1), namely that the trial court failed to advise him that he had a right to subpoena witnesses.”
State v. R. E. G., 364 P.3d 733 (Or. Ct. App. 2015).
· cites it 2× “” Under ORS 427.265, when the person alleged to be intellectually disabled is brought before the court, the court must advise that person of the nature of the proceedings and of that person’s rights to counsel and to subpoena witnesses.”
— Or. Rev. Stat. § 427.265(1) — 7 cases
State v. S. R.-N., 506 P.3d 492 (Or. Ct. App. 2022).
“245(2) (“the court shall cause a citation to issue” that includes specified information and rights); and (3) the court failed to advise him of the nature of the proceedings, as required by ORS 427.265(1). Held: Given the record and appellant’s arguments on appeal, the court…”
State v. C. P., 486 P.3d 845 (Or. Ct. App. 2021).
“At the beginning of the hearing, the court advised appellant, who was repre- sented by legal counsel throughout the hearing, of her right to legal counsel and about the consequences of the proceed- ing as required by ORS 427.265. At the conclusion of the hearing, the court…”
State v. M. L. L. (In re M. L. L.), 414 P.3d 923 (Or. Ct. App. 2018).
“She contends that the trial court plainly erred by failing to advise her of all of the possible results of the proceedings, in violation of ORS 427.265(1). 1 The state concedes that the court plainly erred.”
State v. M. M. -B., 549 P.3d 600 (Or. Ct. App. 2024).
“In her sole assignment of error, appellant contends that the trial court plainly erred by failing to pro- vide the complete advice of rights required by ORS 427.265. Specifically, she argues that the court plainly erred when it advised her that she had the right to an attorney…”
State v. K. B. (In re K. B.), 435 P.3d 809 (Or. Ct. App. 2019).
“Appellant contends that the trial court plainly erred by failing to advise her of all the possible results of the proceedings as required by ORS 427.265(1), including the possibility of conditional release or voluntary treatment.”
— Or. Rev. Stat. § 427.265(4) — 1 case
State v. S. R.-N., 506 P.3d 492 (Or. Ct. App. 2022).
“245(2) (“the court shall cause a citation to issue” that includes specified information and rights); and (3) the court failed to advise him of the nature of the proceedings, as required by ORS 427.265(1). Held: Given the record and appellant’s arguments on appeal, the court…”
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