(1) A writ of habeas corpus may be served by any sheriff within the county of the sheriff, or by any other person designated in the writ in any county within the state. The service of the writ shall be deemed complete, so as to require the prisoner to be brought up before the court or judge issuing the writ under the provisions of ORS § 34.370, only if:

(a) The party serving the writ tenders to the person in whose custody the prisoner may be, if such person is a sheriff or other officer, the fees allowed by law for bringing up such prisoner; and

(b) The party also enters into an undertaking to such sheriff or other officer, in a penalty double the sum for which the prisoner is detained, if the prisoner is detained for any specific sum of money, and if not, then in such a sum as the judge granting the writ directs, not exceeding $1,000, to the effect that such person shall pay the charges for carrying back the prisoner if the prisoner is remanded, and that the prisoner will not escape, either in going to or returning from the place to which the prisoner is to be taken.

(2) If such fees are not paid, or such security is not tendered, the officer to whom the writ is directed shall make a return, in the manner required by ORS § 34.540, and shall state in the return the reason why the prisoner is not produced, and thereupon the court or judge granting the writ may proceed as if the prisoner was produced. This section, except for the first sentence, does not apply to a case wherein the writ is issued on the application of the district attorney. [Amended by 1991 c.884 § 7]