LB636 LB636
2021 2021
LEGISLATURE OF NEBRASKA
ONE HUNDRED SEVENTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 636
Introduced by Cavanaugh, J., 9.
Read first time January 20, 2021
Committee: Judiciary
1 A BILL FOR AN ACT relating to criminal procedure; to amend sections
2 14-603, 23-1808, 24-519, 25-1023, 25-10,101, 25-1544, 25-2730,
3 29-401, 29-428, 29-506, 29-901.02, 29-901.04, 29-901.06, 29-902.01,
4 29-903, 29-904, 29-908, 29-909, 29-1605, 29-1606, 29-1811, 29-2106,
5 29-2806, 29-2809, 33-117, 42-929, 43-255, 49-801, and 60-1307,
6 Reissue Revised Statutes of Nebraska, and sections 28-311.09,
7 28-311.11, 29-422, 29-901, 29-901.01, 29-1201, and 43-253, Revised
8 Statutes Cumulative Supplement, 2020; to eliminate cash bail,
9 appearance bonds, and related provisions; to provide procedures,
10 rules, and standards for release on a defendant's own recognizance
11 or upon conditional release; to require appointment of counsel as
12 prescribed; to change provisions relating to conditional release and
13 pretrial release agencies; to eliminate and update obsolete and
14 outdated language; to provide for rules; to provide duties for the
15 Supreme Court; to define a term; to eliminate provisions relating to
16 posting of bonds under the Nebraska Rules of the Road; to harmonize
17 provisions; to repeal the original sections; and to outright repeal
18 sections 29-901.03, 29-901.05, 29-902, 29-905, 29-906, 29-907,
19 29-1105, 29-1106, 29-1107, 29-1108, 29-1109, 29-1110, and 60-686,
20 Reissue Revised Statutes of Nebraska.
21 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 14-603, Reissue Revised Statutes of Nebraska, is
2 amended to read:
3 14-603 The chief of police shall be the principal ministerial
4 officer of the corporation. His or her jurisdiction and that of his or
5 her officers in the service of process in all criminal cases and in cases
6 for the violation of city ordinances shall be coextensive with the
7 county. The chief of police or his or her officers shall take bail in all
8 bailable cases for the appearance before the county court of persons
9 under arrest, but such bail shall be subject to the approval of the
10 county court.
11 Sec. 2. Section 23-1808, Reissue Revised Statutes of Nebraska, is
12 amended to read:
13 23-1808 If the evidence of any witness shall implicate any person as
14 the unlawful slayer of the person over whom the said inquisition shall be
15 held, the coroner shall recognize such witness, in such sum as the
16 coroner may think proper, to be and appear at the next term of the
17 district court for the said county, there to give evidence of the matter
18 in question and not depart without leave. Such recognizance shall be
19 administered pursuant and subject to rules adopted by the Supreme Court
20 in the same form, as nearly as practicable, and have the same effect as
21 recognizances taken in county court in cases of felony.
22 Sec. 3. Section 24-519, Reissue Revised Statutes of Nebraska, is
23 amended to read:
24 24-519 Clerk magistrates shall have authority to perform the
25 following duties:
26 (1) To conduct any proceeding which is based on a misdemeanor,
27 traffic infraction, violation of a city or village ordinance, or traffic
28 violation or infraction under the laws of this state, except the trial of
29 defendants who plead not guilty or for whom a not guilty plea has been
30 entered. Any penalty imposed under this subdivision shall be made
31 pursuant to a schedule established by the Supreme Court. Such schedule
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1 shall not provide for imprisonment;
2 (2) To conduct any proceeding for the issuance of warrants for
3 arrest or for searches and seizures when no county or district judge is
4 available in the county;
5 (3) To hear and determine any nonfelony proceeding for preliminary
6 examination to determine probable cause or the release on bail of persons
7 charged with bailable offenses as provided in sections 29-901 to 29-910
8 and sections 17 and 18 of this act;
9 (4) To determine temporary custody of a juvenile pursuant to
10 sections 43-251, 43-253, 43-254, and 43-258. An order of a clerk
11 magistrate shall be reviewed by the county judge upon the written request
12 of any party to the action within ten days of the order. Such order may
13 be affirmed, modified, or set aside by the county judge. The clerk
14 magistrate may also appoint a guardian ad litem as provided in section
15 43-272.01;
16 (5) To hear and determine noncontested proceedings relating to
17 decedents' estates, inheritance tax matters, and guardianship or
18 conservatorship, except that matters relating to the construction of
19 wills and trusts, the determination of title to real estate, and an
20 authorization of the sale or mortgaging of real estate shall not be heard
21 by a clerk magistrate; and
22 (6) To enter orders for hearings and trials, including orders for
23 garnishment and hearings on distribution of garnished funds.
24 Sec. 4. Section 25-1023, Reissue Revised Statutes of Nebraska, is
25 amended to read:
26 25-1023 The court shall make proper orders for the preservation of
27 the property during the pendency of the suit. It may direct the sale of
28 property when, because of its perishable nature or the costs of keeping
29 it, a sale will be for the benefits of the parties. In vacation, such
30 sale may be ordered by the judge of the court. The sale shall be public,
31 after such advertisement as is prescribed for the sale of like property
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1 on execution, and shall be made in such manner, and upon such terms of
2 credit, with security, as the court or judge, having regard to the
3 probable duration of the action, may direct. The proceeds, if collected
4 by the sheriff, with all the money received by the sheriff him from
5 garnishees, shall be held and paid over by the sheriff him under the same
6 requirement and responsibilities of the sheriff himself and sureties as
7 are provided in rules adopted by the Supreme Court respect to money
8 deposited in lieu of bail.
9 Sec. 5. Section 25-10,101, Reissue Revised Statutes of Nebraska, is
10 amended to read:
11 25-10,101 The defendant may, within twenty-four hours from the time
12 the undertaking referred to in section 25-10,100 is given by the
13 plaintiff, give notice to the sheriff that the defendant he excepts to
14 the sufficiency of the sureties. If the defendant he fails to do so, the
15 defendant he must be deemed to have waived all objections to them. When
16 the defendant excepts, the sureties must justify upon notice as provided
17 in rules adopted by the Supreme Court in the case of bail on arrest. The
18 sheriff or other officer shall be responsible for the sufficiency of the
19 sureties, until the objection to them is waived as above provided or
20 until they justify. The property shall be delivered to the plaintiff when
21 the undertaking required by section 25-1098 has been given.
22 Sec. 6. Section 25-1544, Reissue Revised Statutes of Nebraska, is
23 amended to read:
24 25-1544 In all cases where judgment is rendered in any court of
25 record within this state upon any instrument in writing in which two or
26 more persons are jointly and severally bound, and it shall be made to
27 appear to the court by parol or other testimony that one or more of said
28 persons so bound signed the same as surety or bail for a his or their
29 codefendant, it shall be the duty of the clerk of said court in recording
30 the judgment thereon, to certify which of the defendants is principal
31 debtor, and which are sureties or bail. The clerk of the court aforesaid
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1 shall issue execution on such judgment, commanding the sheriff or other
2 officer to cause the money to be made of the goods and chattels, lands,
3 and tenements, of the principal debtor, but for want of sufficient
4 property of the principal debtor to make the same, that the sheriff or
5 other officer he cause the same to be made of the goods and chattels,
6 lands, and tenements of the surety or bail. In all cases the property,
7 both personal and real, of the principal debtor, within the jurisdiction
8 of the court, shall be exhausted before any of the property of the surety
9 or bail shall be taken in execution.
10 Sec. 7. Section 25-2730, Reissue Revised Statutes of Nebraska, is
11 amended to read:
12 25-2730 (1) In cases involving a money judgment or a judgment for
13 the possession of specified personal property, no appeal shall operate as
14 a supersedeas unless the appellant within thirty days after the entry of
15 the judgment deposits with the clerk of the county court a cash bond or
16 an undertaking with at least one good and sufficient surety approved by
17 the court. In cases involving a money judgment, the bond or undertaking
18 shall be in the amount of the judgment, costs, and estimated interest
19 pending appeal and conditioned that the appellant shall pay the judgment,
20 interest, and costs adjudged against him or her on appeal. In cases
21 involving a judgment for the possession of specified personal property,
22 the bond or undertaking shall be in an amount at least double the value
23 of the property and conditioned that the appellant shall pay all costs
24 and damages adjudged against him or her on appeal and deliver the
25 property in accordance with the judgment on appeal.
26 (2) In appeals in cases of forcible entry and detainer, no appeal
27 shall operate as a supersedeas unless the party appealing shall deposit
28 an undertaking or cash bond in accordance with section 25-21,234.
29 (3) In appeals in criminal cases, the execution of judgment and
30 sentence, other than any sentence to a period of confinement, shall be
31 suspended during the appeal. Execution of a sentence to a period of
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1 confinement may shall be suspended only if (a) the county court, in its
2 discretion, allows the defendant to be released on personal continue at
3 liberty under the prior recognizance or on conditional release in
4 accordance with sections 29-901 to 29-910 and sections 17 and 18 of this
5 act bail or (b) the defendant enters into a written recognizance to the
6 State of Nebraska, with surety or sureties approved by the county court
7 or with a cash bond, filed with the clerk of the county court. The
8 conditions of any condition of the recognizance or release shall include
9 be that the defendant will prosecute the appeal without delay and abide
10 and perform the judgment and sentence of the appellate district court.
11 Upon the filing of the notice of appeal, the county court shall consider
12 whether to release the defendant under sections 29-901 to 29-910 and
13 sections 17 and 18 of this act fix the amount of the recognizance or cash
14 bond, which shall be a reasonable amount. The cash bond shall be returned
15 upon the fulfillment of the conditions of the bond.
16 (4) In appeals in cases under the Uniform Residential Landlord and
17 Tenant Act, no appeal shall operate as a supersedeas of any writ of
18 restitution unless the defendant deposits an undertaking or cash bond in
19 accordance with section 76-1447.
20 (5) In all other cases, perfection of an appeal shall not stay the
21 proceedings.
22 (6) In any case, the district court, on motion after notice and
23 hearing and upon such terms as justice shall require, may stay any order
24 or judgment appealed from, order a renewal or additional surety of an
25 undertaking, or order the amount of the undertaking or recognizance
26 increased or decreased, except that in a criminal case the district court
27 shall consider release on personal recognizance or under conditions of
28 release in accordance with sections 29-901 to 29-910 and sections 17 and
29 18 of this act. The action of the district court shall be certified by
30 the clerk to the clerk of the county court.
31 Sec. 8. Section 28-311.09, Revised Statutes Cumulative Supplement,
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1 2020, is amended to read:
2 28-311.09 (1) Any victim who has been harassed as defined by section
3 28-311.02 may file a petition and affidavit for a harassment protection
4 order as provided in subsection (3) of this section. Upon the filing of
5 such a petition and affidavit in support thereof, the court may issue a
6 harassment protection order without bond enjoining the respondent from
7 (a) imposing any restraint upon the person or liberty of the petitioner,
8 (b) harassing, threatening, assaulting, molesting, attacking, or
9 otherwise disturbing the peace of the petitioner, or (c) telephoning,
10 contacting, or otherwise communicating with the petitioner. The
11 harassment protection order shall specify to whom relief under this
12 section was granted.
13 (2) The petition for a harassment protection order shall state the
14 events and dates or approximate dates of acts constituting the alleged
15 harassment, including the most recent and most severe incident or
16 incidents.
17 (3) A petition for a harassment protection order shall be filed with
18 the clerk of the district court, and the proceeding may be heard by the
19 county court or the district court as provided in section 25-2740.
20 (4) A petition for a harassment protection order filed pursuant to
21 subsection (1) of this section may not be withdrawn except upon order of
22 the court. An order issued pursuant to subsection (1) of this section
23 shall specify that it is effective for a period of one year unless
24 otherwise dismissed or modified by the court. Any person, except the
25 petitioner, who knowingly violates an order issued pursuant to subsection
26 (1) of this section after service or notice as described in subdivision
27 (9)(b) of this section shall be guilty of a Class II misdemeanor.
28 (5)(a) Fees to cover costs associated with the filing of a petition
29 for a harassment protection order or the issuance or service of a
30 harassment protection order seeking only the relief provided by this
31 section shall not be charged, except that a court may assess such fees
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1 and costs if the court finds, by clear and convincing evidence, that the
2 statements contained in the petition were false and that the harassment
3 protection order was sought in bad faith.
4 (b) A court may also assess costs associated with the filing of a
5 petition for a harassment protection order or the issuance or service of
6 a harassment protection order seeking only the relief provided by this
7 section against the respondent.
8 (6) The clerk of the district court shall make available standard
9 application and affidavit forms for a harassment protection order with
10 instructions for completion to be used by a petitioner. Affidavit forms
11 shall request all relevant information, including, but not limited to: A
12 description of the