State ex rel Torres-Lopez v. Fahrion

816                          July 10, 2025                        No. 27

             IN THE SUPREME COURT OF THE
                   STATE OF OREGON

         STATE ex rel ABRAHAM TORRES-LOPEZ,
                    Petitioner on Review,
                              v.
                      Kat FAHRION,
           Administrator for Offender Information
            and Sentence Computation Unit of the
             Oregon Department of Corrections,
                   Respondent on Review.
         (CC 22CV16960) (CA A180541) (SC S071194)

   En Banc
   On review from the Court of Appeals.*
   Argued and submitted February 27, 2025.
   Jedediah Peterson, Equal Justice Law, Portland, argued
the cause and filed the brief for petitioner on review.
   Timothy A. Sylwester, Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent
on review. Also on the brief were Dan Rayfield, Attorney
General, and Benjamin Gutman, Solicitor General.
   BUSHONG, J.
   The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.




______________
    * Appeal from Washington County Circuit Court, Theodore E. Sims, Judge.

, 

 (2024).
Cite as 

 (2025)   817
818                             State ex rel Torres-Lopez v. Fahrion

           BUSHONG, J.
         Relator brought this mandamus case in circuit court
to compel the Oregon Department of Corrections (DOC) to
grant him credit towards a Marion County prison sentence
for the 125 days that he spent in the Clackamas and Marion
County jails before he was sent to prison.1 The circuit court
granted relief, but the Court of Appeals reversed, conclud-
ing that the circuit court had misinterpreted the governing
statute, ORS 137.370(4).2 State ex rel Torres-Lopez v. Fahrion,

, 

 (2024). We allowed review to
resolve two statutory interpretation questions regarding the
scope of a trial court’s authority under ORS 137.370(4).
         The first question is whether a trial court may
grant presentence incarceration credit for time served for
unrelated “conduct,” even when the person has not yet been
convicted of a crime or sentenced for that conduct. The sec-
ond question is whether a person who is held in custody in
a local jail awaiting resolution of a pending probation vio-
lation matter while at the same time serving an unrelated
prison sentence is in “jail” presentencing for purposes of
ORS 137.370(4).
        Based on the text, context, and history of ORS
137.370(4), we hold that a trial court may grant presen-
tence incarceration credit in both circumstances. As we

     1
       Under ORS 34.110 and 34.120, circuit courts have jurisdiction to issue a
writ of mandamus to compel a public officer to take an action that is required
by law. Here, relator sought to compel the Administrator of DOC’s Offender
Information and Sentence Computation (OISC) unit to give him credit for time
he had served in Clackamas and Marion County jails before he was sent to prison
after his Marion County probations were revoked. The parties agree—as do we—
that the circuit court had mandamus jurisdiction to decide the merits of rela-
tor’s claim and that OISC’s Administrator is the appropriate public officer to
be named as the defendant. For ease of reference, we refer to defendant in this
opinion as “DOC.”
     2
       ORS 137.370(4) provides:
         “Unless the court expressly orders otherwise, a person who is confined as
     the result of a sentence for a crime or conduct that is not directly related to
     the crime for which the sentence is imposed, or for violation of the conditions
     of probation, parole or post-prison supervision, shall not receive presentence
     incarceration credit for the time served in jail toward service of the term of
     confinement.”
We analyze the text, context, and legislative history of that provision in detail
later in this opinion.
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will explain, confinement for certain “conduct”—even in the
absence of a “sentence”—is covered by ORS 137.370(4). In
addition, the legislature expressly authorized trial courts
to order—as the trial court did in this case—presentence
credit for time spent in jail awaiting resolution of a proba-
tion violation matter even though the person was also serv-
ing a prison sentence on an unrelated crime. Accordingly,
we reverse the Court of Appeals’ decision and affirm the
judgment of the circuit court.
                    I. BACKGROUND
A.   Historical Facts
         The historical facts are procedural, undisputed, and
taken from the trial court records. In 2016, relator entered
guilty pleas in Marion County Circuit Court in three sepa-
rate cases. Pursuant to the plea agreements in those cases,
relator was sentenced to serve 365 days in jail and placed on
48 months of supervised probation. The plea agreements in
two of the cases stated that he would be sentenced to serve
60-month concurrent prison sentences if those probations
were revoked. In 2018, relator’s probation officer alleged
that relator had violated the conditions of his probations,
and the Marion County court issued a show-cause order and
warrant for his arrest to address those allegations.
        Before relator was arrested on the probation viola-
tion warrant, he was indicted in Clackamas County Circuit
Court, Case No. 18CR85288, on new charges. Based on that
indictment, the Clackamas County court issued its own
warrant for relator’s arrest. On December 21, 2019, relator
was arrested on both warrants and held in the Clackamas
County Jail. On March 11, 2020, relator pleaded guilty to
two counts in the Clackamas County case. Pursuant to the
plea agreement, the Clackamas County Circuit Court sen-
tenced relator to serve 13 months in prison on one count and
six months in prison on the other with the sentences to run
concurrently.
         Relator was not immediately transported to prison
to begin serving those sentences. Instead, because he was
still being held, in part, under the authority of the Marion
County probation violation warrant, he was transported to
820                             State ex rel Torres-Lopez v. Fahrion

the Marion County Jail to address the pending probation
matter. Relator eventually admitted that he had violated the
conditions of his probation, and the court revoked his proba-
tion on all counts. On April 24, 2020, relator was sentenced
in accordance with his original plea agreements to serve 60
months in prison in two of the Marion County cases, with
the prison sentences to run concurrently with each other.
The probation revocation judgments in both cases speci-
fied that relator was entitled to “credit for time served since
December 21, 2019[,] including time credited to Clackamas
County case #18CR85288.”3 Thus, the trial court ordered
that relator would receive 125 days of presentence incarcera-
tion credit—the time between his December 21, 2019, arrest
and the April 24, 2020, probation revocation sentencing.4
          That 125-day period consists of two categories.
First, relator was held in custody in the Clackamas County
Jail for 82 days—from December 21, 2019 through March 11,
2020—before he was sentenced to prison in his Clackamas
County case. During that time, he was being held in cus-
tody presentencing in the Clackamas County case, and,
simultaneously, held on the probation violation warrant that
had been issued in the Marion County cases. Second, for
the next 43 days—from March 12 (after sentencing in the
Clackamas County case) to April 24 (when he was sentenced
upon revocation of probation in the Marion County cases)—
he was held in jail in the physical custody of the Marion
County Sheriff pending resolution of the Marion County
probation violation proceedings. He was also in the legal
custody of the Marion County Sheriff because of the proba-
tion violation warrant, and he was, simultaneously, in the
legal custody of DOC because of the prison sentence in the
     3
       The trial court later amended the judgments to add the following: “The
defendant shall receive incarceration credits pursuant to ORS 137.370(4) and (5)
for all time since his arrest on these charges including any time served on other
sentences during the time since his arrest on these charges.”
     4
       The appellate record in this case does not include the transcript of the pro-
bation violation and sentencing hearing in the underlying Marion County crim-
inal cases. As explained below, if the court did not give relator 125 days’ presen-
tence incarceration credit towards his Marion County prison sentences, then, as
a practical matter, relator would not receive any credit at all for that jail time
because he would finish serving the concurrent 13-month sentence imposed in
the Clackamas County case long before he finished serving the 60-month concur-
rent sentence imposed in the Marion County cases.
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Clackamas County case. After his probation was revoked
and he was sentenced to prison in the Marion County cases,
he was transported to the physical custody of DOC to serve
the remainder of his prison sentences.
B.   Relator’s Challenge to DOC’s Sentence Calculation
          When relator was transported to DOC’s physical
custody, DOC determined that he was entitled to 82 days’
presentence incarceration credit towards the 13-month
prison sentence in the Clackamas County case to account
for the time that he had been held in the Clackamas County
Jail from December 21, 2019 to March 11, 2020. DOC did not
give relator any presentence incarceration credit towards
the 60-month prison sentences that he was serving in the
Marion County cases, even though the judgments in those
cases expressly stated that he was entitled to credit for time
served since December 21, 2019.
          Relator then asked DOC to recalculate his sen-
tences to give him that credit, but DOC responded that it
was unable to give him credit on his sentences in the Marion
County cases for the 125-day period from December 21, 2019
through April 24, 2020, as ordered by the Marion County
court. DOC explained that, under ORS 137.370(2)(a), rela-
tor was only entitled to presentence incarceration credit on
the Clackamas County sentence, not the Marion County
sentences, for the 82 days that he was held presentencing—
that is, from December 21, 2019 to March 12, 2020—in the
Clackamas County case. DOC further explained that he was
not entitled to presentence incarceration credit for the 43
days from March 12 through April 24, 2020, because he had
begun serving his prison sentence in the Clackamas County
case, so that time could not be counted as presentence incar-
ceration in jail. DOC concluded that the Marion County court
could not order presentence incarceration credit for time held
in custody on the Clackamas County case.
         Relator then filed a petition for a writ of mandamus
in circuit court, asking the court to order DOC to grant him
125 days’ credit for time served pursuant to the sentencing
court’s orders and ORS 137.370(4). That statute provides:
822                      State ex rel Torres-Lopez v. Fahrion

       “Unless the court expressly orders otherwise, a person
   who is confined as the result of a sentence for a crime or
   conduct that is not directly related to the crime for which
   the sentence is imposed, or for violation of the conditions
   of probation, parole or post-prison supervision, shall not
   receive presentence incarceration credit for the time served
   in jail toward service of the term of confinement.”
        Relator contended that, under that provision, he
was entitled to “presentence incarceration credit” for the 125
days that he was held in jail before the Marion County court
revoked his probation, because that court had expressly
ordered that he was entitled to that credit—that is, the court
had “expressly order[ed] otherwise.” The trial court agreed
with relator and issued the writ. DOC appealed, contend-
ing that the trial court had misinterpreted ORS 137.370
and thus erred when it issued the writ. As noted above, the
Court of Appeals agreed with DOC and reversed the trial
court. We allowed review and, for the reasons explained
below, now reverse the Court of Appeals’ decision.
                      II. DISCUSSION
         The issue on review hinges on the interpretation of
ORS 137.370. We review the interpretation of a statute for
legal error, applying our established framework in which we
seek “to determine the legislature’s intended meaning by
examining the statutory text in context, taking into account
any legislative history that we find helpful.” State v. Wallace,

, 

 (2024) (citing State v. Gaines,

, 

 (2009)).
         As noted above, DOC acknowledges that, upon
revoking relator’s probations and imposing a prison sen-
tence, pursuant to ORS 137.370(4), the Marion County court
expressly ordered that relator would receive presentence
incarceration credit for the 125 days that he was held in
custody from December 21, 2019 to April 24, 2020. In DOC’s
view, subsection (4) of ORS 137.370 does not apply to any
part of the 125-day period in dispute. Instead, according to
DOC, subsection (2) of ORS 137.370 is the applicable pro-
vision, and relator is not entitled to any credit against his
Marion County sentences under that provision. DOC pres-
ents two different statutory interpretation arguments in
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support of its contention that ORS 137.370(4) does not apply
to any part of the 125-day period that is in dispute. First,
DOC contends that the statute does not apply during the
first 82 days because relator was not confined as the result
of a “sentence” during that time. Second, DOC contends that
the statute does not apply during the next 43 days because
relator was in DOC’s custody during that time—serving his
prison sentence on the Clackamas County case—and thus,
he was not being held in “jail” presentencing.
         We reject both contentions. As we will explain,
the text, context, and legislative history of ORS 137.370(4)
all support the conclusion that the Marion County Circuit
Court had authority to order DOC to give relator presen-
tence incarceration credit for the entire 125 days that are
at issue. We begin with an overview of ORS 137.370 before
turning to the two periods in dispute.
A.    Overview of ORS 137.370
        As noted above, DOC contends that subsection (2) of
ORS 137.370—not subsection (4)—governs sentencing of a
person in relator’s situation.5 Subsection (2) of ORS 137.370
provides in pertinent part:
         “(2) Except as provided in subsections (3) and (4) of this
     section, when a person is sentenced to imprisonment in the
     custody of the Department of Corrections, for the purpose
     of computing the amount of sentence served the term of
     confinement includes only:
         “(a) The time that the person is confined by any author-
     ity after the arrest for:
        “(A)    The crime for which sentence is imposed;
        “(B) A lesser included or greater inclusive offense of
     the crime for which sentence was imposed; and
        “(C) Any other crime constituting a violation of Oregon
     law within the same county designated by the sentencing
    5
       Subsection (2) of ORS 137.370 is part of the context of construing subsec-
tion (4). See PGE v. Bureau of Labor and Industries, 

, 

 (1993) (statutory context includes other provisions of the same statute and
other related statutes). Another related statute, ORS 137.320(3), provides that it is
DOC’s responsibility to “compute the defendant’s sentence in accordance with the
provisions of ORS 137.370.” That reference means that DOC’s sentence computa-
tion is determined in accordance with the applicable provisions of ORS 137.370.
824                             State ex rel Torres-Lopez v. Fahrion

    court in the judgment as having been committed as part of
    the same criminal episode as the crime for which sentence
    was imposed[.]”
(Emphasis added.) Paragraph (2)(a) of ORS 137.370 thus
governs the sentence computation for a single crime, for a
lesser or greater included offense, or for multiple crimes
committed as part of the same criminal episode. The pref-
atory words of subsection (2)—”[e]xcept as provided in sub-
section (3) and (4)”—mean that, for sentences that were not
based on a single crime, a lesser or greater included offense,
or multiple crimes committed as part of the same criminal
episode, subsection (3) or subsection (4) applies.6
           To reiterate, subsection (4) of ORS 137.370 provides:
        “Unless the court expressly orders otherwise, a person
    who is confined as the result of a sentence for a crime or
    conduct that is not directly related to the crime for which
    the sentence is imposed, or for violation of the conditions
    of probation, parole or post-prison supervision, shall not
    receive presentence incarceration credit for the time served
    in jail toward service of the term of confinement.”
Subsection (4) thus governs sentences imposed for crimes
that were not “directly related” to the crime for which a
sentence is imposed or for probation, parole, or post-prison
supervision violations. And, critically, subsection (4) allows
presentence incarceration credit for those crimes if the court
“expressly orders” that credit.
        Thus, the text of subsections (2) and (4) together
suggests that, because relator’s Marion County sentence
was not based on the same crime for which he was sentenced
by the Clackamas County court, or for a lesser or greater
included offense, or for “directly related” crimes commit-
ted as part of the same criminal episode as the Clackamas
County offense, subsection (4)—not subsection (2)—applies.
But, as noted above, DOC contends that subsection (4) does
not apply, for different reasons, to either the 82 days relator
was held in custody in the Clackamas County Jail or to the
   6
     Subsection (3) of ORS 137.370 is not relevant here. That subsection applies
when a judgment of conviction is vacated and a new sentence is thereafter
imposed for the same offense, a lesser or greater include offense, or other offenses
committed as part of the same criminal episode.
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43 days he was held in the Marion County Jail after he was
sentenced in the Clackamas County case. We address those
arguments in turn, starting with the 82-day period.
B.   The First Period (82 Days)
     1. Text and context of ORS 137.370(4)
         DOC acknowledges that the Marion County court
would have authority under subsection (4) to order presen-
tence incarceration credit that would otherwise be denied
under that subsection—that is, to “expressly order[ ] other-
wise”—if subsection (4) applied to relator’s situation. DOC
contends that subsection (4) does not apply during the 82 days
that relator was held in the Clackamas County Jail because
relator was not confined during that period as a result of a
“sentence” for conduct. DOC does not dispute that relator’s
confinement during that 82-day period was for conduct—the
conduct resulting in his Clackamas County charges—that
was not directly related to the crime for which the Marion
County sentence was imposed. But DOC contends that rela-
tor’s confinement during that 82-day period was the result
of pretrial detention in Clackamas County and the proba-
tion violation warrant from Marion County, not a “sentence”
for a crime or a “sentence” for conduct. Thus, in DOC’s view,
because relator’s confinement during that 82-day period
was not the result of a “sentence” at all, it was not covered
by ORS 137.370(4).7 We disagree.
          DOC reasons that a “sentence”—either for a “crime”
or for “conduct”—is required by a grammatical reading of
the text of subsection (4). Although that is one plausible
reading, that reading is not required by the text or gram-
mar. The relevant part of ORS 137.370(4) could be broken
into two equivalent clauses that describe how “a person
* * * is confined.” A person could be confined either as the
result of “a sentence for a crime” or the person could be con-
fined as the result of the person’s “conduct.” Both clauses
    7
       DOC notes that ORS 137.370(4) also would authorize a court to order pre-
sentence incarceration credit for time that a person is confined in a local jail as a
sanction for violating the conditions of probation, parole, or post-prison supervi-
sion. We agree with DOC that that provision does not apply here because relator
was confined in jail until April 2020 before the allegations that he had violated
the conditions of his Marion County probations had been resolved, not as a sanc-
tion for violating those conditions.
826                              State ex rel Torres-Lopez v. Fahrion

are qualified by the remaining part of the sentence, that
is, the crime or the conduct must not be “directly related to
the crime for which the sentence is imposed.” That construc-
tion would cover relator’s situation because he was confined
in the Clackamas County Jail during that 82-day period in
part because of “conduct” that led to charges in Clackamas
County and that was unrelated to the alleged violation of
his Marion County probations.
         DOC contends that its interpretation of ORS
137.370(4) is supported by our analysis of a related statute,
ORS 137.320, in Nissel v. Pearce, 

, 

(1988).8 Specifically, DOC contends that Nissel (1) stated a
general rule that DOC or the county sheriff, but not a sen-
tencing court, has sole responsibility for computing and
granting credit for time served, id.at 105; and (2) concluded
that the legislature did not intend to allow a person to
receive “double credit” for presentence incarceration against
multiple sentences in a string of consecutive sentences, 

. It is true that, in Nissel, this court observed that, in
general, it is DOC’s responsibility to compute the length of
a sentence, and that the statute did not allow DOC to give
“double credit” for multiple consecutive sentences. But that
observation does not support DOC’s interpretation of sub-
section (4) of ORS 137.370 because that provision did not
exist in 1988, when we decided Nissel.
        Part of subsection (4) was first added to ORS 137.370
in 1995. Or Laws 1995, ch 657, § 20.9 In 2015, the legisla-
    8
      Statutory context may also include “case law interpreting the statute at
issue and related statutes, including earlier versions of those statutes.” SAIF
v. Walker, 

, 

 (2000). ORS 137.320 has been amended
on two occasions following our decision in Nissel. Or Laws 1995, ch 423, § 29; Or
Laws 2014, ch 31, § 2. Because those amendments do not affect our analysis, we
refer to the current version of the statute in this opinion.
    9
      Context also includes the text of the statute before it was amended. See
State v. Turnidge (S059155), 

, 

 (2016) (explaining that
a court examines prior versions of a statute as part of statutory context). The
1995 legislature added the following provision:
         “A person who is confined as the result of a sentence for a crime or conduct
    that is not directly related to the crime for which the sentence is imposed, or
    for violation of the conditions of probation, parole or post-prison supervision,
    shall not receive presentence incarceration credit for the time served in jail
    towards service of the term of confinement.”
Or Laws 1995, ch 657, § 20.
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ture amended that addition to give the court discretion to
order presentence incarceration credit that would otherwise
be denied by that subsection. Or Laws 2015, ch 508, § 4.10
The statute discussed in Nissel—ORS 137.320—requires
the computation of a sentence “in accordance with the provi-
sions of ORS 137.370.” ORS 137.320(3). Thus, after the 2015
amendment to ORS 137.370(4), DOC’s computation became
subject to a sentencing court’s exercise of discretion to
“order otherwise.” Nissel’s discussion of DOC’s sole respon-
sibility to compute the sentence came before the legislature
gave courts a role in that computation. Similarly, Nissel’s
discussion of the prohibition against “double credit” came
before the legislature gave courts the discretionary author-
ity to order what could be, in effect, “double credit” in some
limited circumstances.
        In addition, Nissel’s interpretation of ORS 137.320
to generally preclude giving a person “double credit” against
multiple consecutive sentences does not apply here, because
relator was not sentenced to multiple consecutive prison
sentences. The 60-month sentences in the Marion County
cases ran concurrently to each other and to the 13-month
prison sentence that had been previously imposed in the
Clackamas County case. See ORS 137.123(1) (requiring sen-
tences to run concurrently “unless the judgment expressly
provides for consecutive sentences”).
         Although giving relator presentence incarceration
credit towards his Marion County sentences in this case
would, as a legal matter, give him “double credit” for that
time, doing so was, as a practical matter, the only way to give
him any credit at all because the sentences imposed by the
two courts would run concurrently. DOC gave relator 82 days’
presentence incarceration credit towards the 13-month sen-
tence imposed by the Clackamas County court, and the 43
days that he was held after sentencing in Clackamas County
would count towards that sentence, but he would finish serv-
ing that sentence long before he finished serving the con-
current 60-month sentences imposed by the Marion County
court. Thus, giving relator presentence incarceration credit

    10
       The 2015 amendment added the words “[u]nless the court expressly orders
otherwise” to the beginning of ORS 137.370(4). Or Laws 2015, ch 508, § 4.
828                            State ex rel Torres-Lopez v. Fahrion

only towards the Clackamas County sentence would be mean-
ingless in determining how much time he served in prison.
         In summary, the text and context of ORS 137.370(4)
support the conclusion that, after the 2015 amendment to
the statute, courts had authority to grant what would other-
wise be considered “double credit” under the circumstances
presented here. As we will explain next, the legislative his-
tory confirms that understanding.
      2. Legislative history
         As noted above, subsection (4) was first added to
ORS 137.370 in 1995, when the legislature enacted House
Bill (HB) 2492 (1995). Or Laws 1995, ch 657, § 20. Although
it was not until 2015 that the legislature gave courts the
authority to order presentence incarceration credit that
would not have been granted by DOC, the legislative history
of the 1995 amendment is still relevant because, as noted
above, DOC contends that subsection (4) applies only if a
defendant is held in custody based on a “sentence for * * *
conduct” and not for time that a defendant is held for “con-
duct” in the absence of a “sentence” for that conduct. But
the legislative history of HB 2492 (1995) reveals that the
word “sentence” was added to subsection (4) to modify only
the word “crime.” It was not added to require a sentence for
contempt or for any other “conduct” for which a person might
be held in custody but that did not constitute a crime.
         In 1995, as today, subsection (2) of ORS 137.370
would not give anyone presentence incarceration credit for
time in custody on an unrelated crime.11 Nevertheless, the
Oregon District Attorneys Association (ODAA) proposed
adding subsection (4) to ORS 137.370 in 1995 to avoid con-
fusion for the DOC personnel who were responsible for
addressing various court orders and judgments in comput-
ing the length of prison sentences and determining release
dates. Tape Recording, Senate Committee on Judiciary,
HB 2492, May 18, 1995, Tape 173, Side B (testimony of
Fred Avera, ODAA). The bill as originally introduced did
    11
       At that time, subsection (2) provided that the sentence served “includes
only” the time that the person is confined by any authority after arrest for the
crime for which sentence is imposed, and time outside a confinement facility as
authorized by a DOC program. ORS 137.370(2)(a), (b) (1995).
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 (2025)                                      829

not include a “sentence” requirement at all. See Exhibit I,
Senate Committee on Judiciary, HB 2492, May 18, 1995
(original proposed language for subsection (4)).
          The “sentence” requirement was added when the
original bill was amended at the request of the Oregon
Criminal Defense Lawyers Association (OCDLA). Jim
Arneson of OCDLA testified that HB 2492, as originally
drafted, failed to adequately address what would happen
when a person was charged with two crimes during a sin-
gle criminal episode and subsequently held in jail on both
charges. Tape Recording, Senate Committee on Judiciary,
HB 2492, May 18, 1995, Tape 175, Side A (testimony of Jim
Arneson, OCDLA). He explained that an individual in that
situation should receive credit for presentence time served
against both resulting convictions and should be denied credit
only if the individual was sentenced separately on unrelated
crimes. To ensure that outcome, Arneson suggested that the
legislature “add ‘of a sentence’ after ‘as a result’ * * * so that
it’s clear that you need to be serving the sentence” for one
crime to be denied presentence credit against a subsequent
sentence for an unrelated crime. 

 The legislature agreed
and amended the bill to insert the phrase “of a sentence” to
ensure that individuals would receive credit for presentence
time served against sentences that had been imposed for
crimes that were part of a single criminal episode, but not
for unrelated crimes. The legislature did not make a simi-
lar amendment to qualify the word “conduct,” and there is
no suggestion in the legislative history that “sentence” was
added to ensure that a sentence was required for contempt
or other conduct to come within the ambit of ORS 137.370(4).
         Applying “sentence” only to “crime” and not to “con-
duct” finds further support in a proposed amendment that
was drafted by legislative staff. See Doyle v. City of Medford,

, 

 (2010) (explaining that leg-
islative history includes a bill’s progression through the leg-
islative process). That proposal would have structured ORS
137.370(4) as follows:
       “(4) A person shall not receive presentence incarcera-
   tion credit for the time served in jail towards service of the
830                              State ex rel Torres-Lopez v. Fahrion

    term of confinement if the person is otherwise confined as
    the result of:
        “(a) A sentence for a crime;
        “(b) Conduct that is not directly related to the crime
    for which the sentence is imposed; or
       “(c) A violation of the conditions of probation, parole or
    post-prison supervision.”
Exhibit A, Senate Committee on Judiciary, HB 2492, May
30, 1995.
         That proposed amendment made it clear that “sen-
tence” applied only to crimes, not conduct. Although the
legislature ultimately enacted ORS 137.370(4) as a single
subsection instead of breaking it into paragraphs as staff
had proposed, there is no evidence that it did so to reject the
staff proposal, and the previous iteration of the provision
suggests that the legislature did not intend for “sentence”
to apply to “conduct,” as noted above. Thus, the legislature
likely intended subsection (4) of ORS 137.370 to apply to
those confined due to “[a] sentence for a crime” as well as
those confined due to “conduct.” That supports our prelim-
inary conclusion, based solely on the text and context, that
the legislature intended subsection (4) to cover confinement
based on “conduct” as well as confinement based on a “sen-
tence for a crime.”
         Of course, under the 1995 statute, courts did not
have any authority to override DOC’s computation of pre-
sentence incarceration credit. As noted above, that changed
in 2015, when the legislature added the discretionary clause
that now appears in ORS 137.370(4). Or Laws 2015, ch 508,
§ 4.12 The legislative history of the 2015 amendment sup-
ports the conclusion that the legislature intended to give
courts the authority to override DOC’s determination that
would deny presentence incarceration credit, that is, to give
courts the authority to “order otherwise” under circum-
stances analogous to relator’s situation.

    12
       The 2015 legislation also included a temporary version of ORS 137.370(4)
that required the prosecuting attorney to agree to the granting of credit. Or Laws
2015, ch 508, § 1. That version was in effect only until July 1, 2017, at which point
the current version became operative. Id. § 5.
Cite as 

 (2025)                                  831

          Brad Berry of the ODAA explained that the amend-
ing bill, HB 2310, dealt with “truth in sentencing,” such that
parties could leave a sentencing hearing with a clear idea
of what would follow. Video Recording, House Committee
on Judiciary, HB 2310, Apr 20, 2015, at 0:55:26 (testimony
of Brad Berry, ODAA), https://olis.oregonlegislature.gov
(accessed July 2, 2025). As relevant here, a staff measure
summary stated that the amendment “addresse[d] the situa-
tion where a defendant is held in custody both on a probation
violation and a new criminal case,” and that “[t]he bill makes
clear that a judge has the discretion to give a defendant credit
on the new criminal matter for time served as part of a proba-
tion violation[.]” Staff Measure Summary, House Committee
on Judiciary, HB 2310, Apr 21, 2015. There is no indication
that the legislature intended to prohibit the converse—that
is, a judge giving a defendant credit on a probation violation
for time served as part of the new criminal matter.
         Testimony from legislative counsel reiterated
what had been provided in the staff measure summary. In
describing the effect of HB 2310, Jessica Minifie from the
Office of Legislative Counsel provided the example of a per-
son who was “in custody on two matters simultaneously”—a
pending probation violation and a new crime—and received
a sentence on the probation violation first. Video Recording,
Senate Committee on Judiciary, HB 2310, May 20, 2015, at
1:19:46 (testimony of Jessica Minifie, Legislative Counsel),
https://olis.oregonlegislature.gov (accessed July 2, 2025).
Minifie explained that, under the then-existing statute,
that person would “not get any credit * * * on the new crime,
even though [the person is] in custody on that crime” and
despite “serving a sentence on a probation matter.” 

 She
provided another example of a person “serving a sentence
in the Department of Corrections” and who is then “brought
to a county on a new crime.” 

 at 1:20:48. In that scenario,
Minifie indicated that the person would get no pretrial
credit against a sentence for the new crime because they
would already be “serving a sentence on another matter.” 

         The 2015 amendment was intended to correct that
situation, and nothing in the legislative history indicates
that the amendment was intended to preclude courts from
832                            State ex rel Torres-Lopez v. Fahrion

ordering that a person would receive presentence incarcer-
ation credit towards imprisonment upon revocation of an
unrelated probation for the time that they were held in cus-
tody before sentencing on another matter.
          Applying the legislative history to our interpretation
of ORS 137.370(4) also underscores that, in many circum-
stances, DOC’s understanding of the statute would make the
word “conduct” in subsection (4) surplusage, contrary to a gen-
eral principle of statutory interpretation. See State v. Clemente-
Perez, 

, 

 (2015) (“As a general rule,
we * * * assume that the legislature did not intend any portion
of its enactments to be meaningless surplusage.”).
         To avoid surplusage, the word “conduct” must be given
a distinct meaning from the word “crime.” We evaluate those
words by reference to each other. See Goodwin v. Kingsmen
Plastering, Inc., 

, 

 (2016) (“It is a
familiar rule that the meaning of words in a statute may be
clarified or confirmed by reference to other words in the same
sentence or provision.”). If confinement because of “a sentence
for a crime” means post-conviction incarceration, then con-
finement for “conduct” likely refers to preconviction incarcer-
ation, thereby giving a distinct meaning to each term.
         The surplusage principle, stated another way,
counsels courts, generally, “to avoid a statutory construc-
tion that creates redundancy in the way that the statute is
read.” SAIF Corp. v. Ward, 

, 

(2022). Reading ORS 137.370(4) to apply to persons who are
“confined as the result of a sentence for a crime” as well as
those who are “confined as the result of * * * conduct” gives
meaning to each part of the statute without any surplusage.
Conversely, applying the term “sentence” to both “crime”
and “conduct” creates a redundancy in most circumstances.
That redundancy becomes apparent when considering a
common situation in which an individual receives a “sen-
tence” for “conduct” that is not necessarily a “crime”—when
the person’s conduct leads to the revocation of their proba-
tion, parole, or post-prison supervision.13 But persons who
     13
        In State v. Lane, 

, 

 (2015), we noted that
many statutes and rules “refer to the imposition of a sanction for probation vio-
lations as ‘sentencing’ ” and concluded that imposing terms of incarceration “as a
Cite as 

 (2025)                                                   833

are confined for violating the conditions of probation, parole,
or post-prison supervision are already covered by the next
clause in ORS 137.370(4), which expressly applies to persons
confined “for violation of the conditions of probation, parole
or post-prison supervision.” Thus, if DOC is correct that “a
person confined for * * * conduct” only applies if the person
is confined because of a sentence for conduct, the term “con-
duct” would be redundant in most circumstances.
         DOC contends that surplusage and redundancy
are avoided because a person could be “sentenced for con-
duct” that is not a crime when they are held in contempt
for violating a court order. It is true that a person can be
sentenced for contempt based on the person’s conduct even if
that conduct does not amount to a crime, but, as discussed
above, there is no evidence in the legislative history that the
legislature included “conduct” in ORS 137.370(4) to ensure
that a sentence for contempt would be covered. If that is
what the legislature intended, it would have used the term
“contempt” instead of “conduct.” Moreover, contempt is not
the only reason—or even the most common reason—that a
person can be held in confinement for “conduct.” For exam-
ple, in addition to presentence incarceration, a person could
also be confined for “conduct” that does not result in a “sen-
tence” if the person is sanctioned for violating the conditions
of probation, parole, or post-prison supervision, or if they are
confined awaiting resolution of allegations that they have
violated the conditions of probation, parole, or post-prison
supervision. Thus, in most circumstances in which a person
could be held in custody for “conduct,” reading the statute to
require a “sentence” for that conduct would be surplusage.
        In summary, the text, context, and legislative his-
tory of ORS 137.370(4) all support the trial court’s conclu-
sion that relator was entitled to credit against his Marion
County sentences for the 82-day period that he was held in
custody before he was sentenced in the Clackamas County
sanction upon probation revocation amounts to ‘sentenc[ing]’ ” within the mean-
ing of Article I, section 44(1)(b) of the Oregon Constitution. (Brackets inLane.);
see also ORS 137.545(5)(b) (providing that the court that initially imposed proba-
tion on a defendant “may revoke probation supervision and impose a sanction as
provided by rules of the Oregon Criminal Justice Commission.”); ORS 138.005(5)
(b) (defining “sentence” to include “imposition or execution of a sentence upon
revocation of probation”).
834                            State ex rel Torres-Lopez v. Fahrion

case because the Marion County court expressly ordered
that he was entitled to that credit, and the statute gave the
court the authority to do so in this situation.14 We turn to
the 43-day period that relator was held in custody after he
was sentenced in the Clackamas County case but before his
Marion County probations were revoked.
C. The Second Period (43 Days)
      1. Text and context of ORS 137.370(4)
         DOC contends that ORS 137.370(4) does not apply to
the 43-day period after relator was sentenced in Clackamas
County but before he was sentenced to prison upon revoca-
tion of his Marion County probations because, although rela-
tor was serving a “sentence” for an unrelated crime, ORS
137.370(4) only applies to presentence incarceration credit
“for the time served in jail.” DOC contends that relator was
not serving presentence time “in jail” during the last 43 days
of confinement because—although he was physically in a
“jail” during that period—he was serving a prison sentence
in DOC’s legal custody. That is true, but it does not mean
that relator was not entitled to presentence incarceration
credit against his Marion County sentence for that time.
         As a factual matter, relator was physically confined
“in jail”—not in a DOC prison—during that entire 43-day
period. As noted above, relator was transported from the
Clackamas County Jail to the Marion County Jail immedi-
ately after sentencing in Clackamas County. Although rela-
tor’s confinement during that 43-day period was post-sen-
tencing in the Clackamas County case, it was presentencing
on the probation violation matters in the Marion County
cases. As a textual and factual matter, that supports the
     14
        DOC also contends that two administrative rules, OAR 291-100-0080(3)
(g) (Jan 16, 2019) and OAR 291-100-0080(3)(e) (Jan 16, 2019), preclude the credit
that the trial court granted to relator. The Court of Appeals cited those rules
in reversing the trial court. Torres-Lopez, 

. To the extent
that DOC’s administrative rules conflict with ORS 137.370(4), the statute con-
trols. See Fisher Broadcasting, Inc. v. Dept. of Rev., 

, 

 (1995) (explaining that a legislative choice under a statute is not subject
to being overruled by department regulation); U. of O. Co-Oper. v. Dept. of Rev.,

, 

 (1975) (“[A]n administrative agency may not, by
its rules, amend, alter, enlarge or limit the terms of a legislative enactment.”).
Consequently, DOC’s administrative rules do not cabin the discretion that the
legislature granted to trial courts in ORS 137.370(4).
Cite as 

 (2025)                                835

conclusion that the Marion County court had the authority
under ORS 137.370(4) to order “presentence incarceration
credit” towards his Marion County sentence for that 43-day
period, contrary to DOC’s contention.
         As a contextual and legal matter, DOC’s contention
is refuted by the distinction between physical custody and
legal custody that is reflected in ORS 137.320 and subsec-
tions (1) and (2) of ORS 137.370. In most cases, upon entry
of a judgment sentencing a defendant to prison, the physi-
cal and legal custody of the defendant are simultaneously
transferred to DOC. See ORS 137.320(1) (requiring the
county sheriff to deliver a defendant to DOC after entry of a
judgment that commits a defendant “to the legal and physi-
cal custody” of DOC). However, the statute recognizes that,
in some circumstances, the physical custody of a defendant
can be transferred to another county jail to resolve charges
pending in that county even though DOC—along with the
county sheriff—will have legal custody of the defendant. See
ORS 137.320(2) (describing process where a defendant “is
surrendered to another legal authority prior to delivery” to
a DOC prison); see also State v. DeCamp, 

,
244 n 4, 

 (1999) (explaining that, under ORS
137.320(1) and (2), a person committed to DOC’s custody
might be “first delivered to another legal authority” to serve
a jail sentence or resolve other charges in another county).
         The fact that relator was in the legal custody of DOC
on the Clackamas County prison sentence did not change
the fact that he was in the physical custody of the Marion
County Sheriff in the Marion County Jail, and simultane-
ously, in the legal custody of the Marion County Sheriff
under the probation violation warrant until the probation
violation matter was resolved. Although he was also in the
legal custody of DOC, serving his Clackamas County sen-
tence, during that 43-day period, that does not mean that
relator was not in “jail” during that time for purposes of his
Marion County cases. He was. He was in the physical cus-
tody of the Marion County Sheriff awaiting resolution of the
probation violation matter. He was simultaneously in the
legal custody of both DOC and the Marion County Sheriff
during that time. And the Marion County court expressly
836                     State ex rel Torres-Lopez v. Fahrion

ordered that that jail time “counts” towards his Marion
County sentence.
         In summary, the text of ORS 137.370(4), read in con-
text, supports the trial court’s conclusion that the Marion
County sentencing court had the authority to give relator
credit for the 43-day period that he was held in the Marion
County Jail awaiting resolution of the probation violation
matter. The legislative history confirms that intent.
      2. Legislative history
         As noted above, subsection (4) was added to ORS
137.370 in 1995, via HB 2492 (1995). Or Laws 1995, ch 657,
§ 20. There is evidence in the legislative history of that bill
that subsection (4) was intended to cover situations analo-
gous to the 43-day period that relator was held in custody
after sentencing in the Clackamas County case. Fred Avera
of ODAA stated that the bill would apply when “a person
is in prison doing a sentence” and “they get charged with
a new crime,” such that they would “not get[ ] credit for the
time that they’re in prison” against the new crime. Tape
Recording, Senate Committee on Judiciary, HB 2492, May
18, 1995, Tape 173, Side B (testimony of Fred Avera, ODAA).
         In other words, they would not receive “double
credit for something they’re already sentenced on and one
they’re pending on.” Id. In a subsequent hearing, Avera
clarified that the amendment would cover “a person who is
doing state time when he gets charged with and then is sen-
tenced on a new crime.” Tape Recording, Senate Committee
on Judiciary, HB 2492, May 18, 1995, Tape 175, Side A (tes-
timony of Fred Avera, ODAA). Similarly, committee counsel
explained that, with the amendment, someone serving time
for a probation violation while also waiting for trial on an
unrelated criminal matter would not receive credit against
the sentence imposed for that other matter. Tape Recording,
Senate Committee on Judiciary, HB 2492, May 18, 1995,
Tape 182, Side A (statement of Bill Taylor, Committee
Counsel).
        Those explanations are analogous to relator’s sit-
uation during the 43-day period from March to April 2020.
During that time, relator was already “sentenced on” the
Cite as 

 (2025)                                                    837

Clackamas County convictions, and he was “pending on” the
probation violations in Marion County. Likewise, he was “doing
state time” for the Clackamas County convictions when he
was “sentenced on” his probation violations in Marion County.
Therefore, the legislature had circumstances comparable to
relator’s confinement from March to April 2020 in mind when
it added subsection (4) to ORS 137.370 in 1995. Under that
version of the statute, a person in relator’s situation would
be covered by ORS 137.370(4) but would not receive double
credit for that time. Then the 2015 amendment gave the court
the authority to order what would, in effect, be double credit
that a person in relator’s situation would not otherwise have
received under the original version of the statute.
         In summary, the text, context, and legislative his-
tory of ORS 137.370(4) all support the trial court’s conclusion
that relator is entitled to presentence incarceration credit
for the 43-day period that he was held in custody after sen-
tencing in the Clackamas County case but before sentencing
in the Marion County case, as the Marion County court had
expressly ordered.
                           III.   CONCLUSION
          We conclude from the text, context, and legislative
history of ORS 137.370(4) that the Marion County sentenc-
ing court had the statutory authority to do what everyone
agrees it intended to do: grant relator presentence incar-
ceration credit towards the concurrent 60-month prison
sentences that the court imposed upon revoking his proba-
tion for the time that he was confined in jail from December
21, 2019 to April 24, 2020.15 Accordingly, DOC was legally
required to grant that credit, and the trial court correctly
granted mandamus relief to compel DOC to comply with the
sentencing court’s order.
        The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.

    15
       Counsel for DOC acknowledged at oral argument that the sentencing court
could have achieved the intended result by subtracting the 125-day period—roughly
four months—from the concurrent 60-month prison sentences it imposed after
revoking relator’s probations. Our interpretation of ORS 137.370(4) thus means that
the court could achieve the same outcome by granting presentence incarceration
credit for that 125-day period when it imposed the 60-month prison sentences.