dissenting.
The majority holds that ORS 181.585 authorizes the Department of Corrections to adopt a sex offender risk assessment scale to be used by the Board of Parole and Post-Prison Supervision that permits the board to designate a person as a predatory sex offender solely on the basis of the nature of the person’s past criminal acts. According to the majority, “proof that a person is currently dangerous is not a necessary prerequisite to determining that he or she continues to present the sort of risk that requires community notification.” 188 Or App 617 at 627. Because the majority’s interpretation deletes the necessity for proof that the statute on its face requires, I disagree with the majority’s holding.
ORS 181.585 provides:
“(1) For purposes of ORS 181.585 to 181.587, a person is a predatory sex offender if the person exhibits characteristics showing a tendency to victimize or injure others and has been convicted of a sex crime listed in ORS 181.594(2)(a) to (d), has been convicted of attempting to commit one of those crimes or has been found guilty except for insanity of one of those crimes.
“(2) In determining whether a person is a predatory sex offender, an agency shall use a sex offender risk assessment scale approved by the Department of Corrections or a community corrections agency.”
Subsection (1) of the statute is unambiguous and straightforward. Its text is composed of one sentence consisting of a prefatory phrase and two phrases that define when a person can be designated as a predatory sex offender. The phrases that provide the requirements of predatory sex offender status are in the conjunctive, separated by the word “and.” The first requirement requires a factual determination about whether the person exhibits characteristics showing a tendency, if any, of the offender to victimize and injure others. The use by the legislature of the present tense word “exhibits” combined with the word “characteristics” is subject to no other reasonable interpretation than that the exhibition of characteristics showing a tendency to victimize or injure others must exist at the time that predatory sex offender status is sought.
*640The second requirement in ORS 181.585(1) identifies a category of crimes and requires that the board examine an offender’s past record to determine whether the person has committed one of the listed crimes. When read with the prefatory clause, it says “a person is a predatory sex offender if the person * * * has been convicted of a sex crime listed in ORS 181.594(2)(a) to (d), has been convicted of attempting to commit one of those crimes or has been found guilty except for insanity of one of those crimes.” The factual determination required by the second requirement is objective rather than subjective. The use of the words “has been convicted” and “has been found guilty” require, only for the board to examine the record of the person’s criminal history. Under the second requirement, unlike under the first requirement, no issues of fact are determined about what tendencies of the person are being exhibited at the time of the hearing.
Subsection (2) of the statute is similarly unambiguous. While subsection (1) provides for the requirements before predatory sex offender status can be imposed, subsection (2) authorizes the procedure for making the determinations in subsection (1). Under subsection (2), “the Board is directed to employ a Department-approved risk assessment scale” by subsection (2) of the statute. Noble v. Board of Parole, 327 Or 485, 497, 964 P2d 990 (1998).1 It necessarily follows from the legislature’s directive in subsection (2) that any risk assessment scale adopted by the department and used by the board must take into account both requirements of subsection (1), i.e., the past criminal history of the person and tendencies that are present in the person at the time of the designation of the status.
*641Notwithstanding the language of subsection (1), the majority interprets subsection (2) to grant authority to allow the board to decide predatory sex offender status based only on an objective basis: the person’s past conduct. According to the majority,
“[t]he legislature’s use of the present tense verb ‘exhibits’ implies that an offender must presently exhibit certain characteristics, but that verb does not identify which characteristics the offender must exhibit. Rather the participial phrase that follows and modifies ‘characteristics’—i.e, ‘characteristics showing a tendency to victimize others’ performs that function. The participial phrase is broad. Nothing in the phrase ‘showing a tendency to victimize others’ requires proof that a person is currently dangerous. Rather, the phrase is broad enough to include persons whose past conduct provides reason to believe that they may be dangerous in the future. The board, for example, reasonably could conclude that an offender with a history of multiple convictions for sexual assault ‘exhibits characteristics showing a tendency to victimize others.’ ”
188 Or App at 625. The majority ultimately concludes that the text of the statute is ambiguous and turns to the legislative history in support of its holding.2
The effect of the majority’s reasoning is to collapse the factual determination required by subsection (l)’s first requirement into subsection (l)’s second requirement regarding the person’s past conduct. Although the majority apparently concedes that the statute requires the board to make determinations regarding both the person’s past record and present tendencies, the factual determination as to the person’s existing tendencies is to be based, under the majority’s view, on the person’s past record. Under the board’s rule, if an automatic override factor or three starred factors3 are *642deemed by the board to apply based on a preliminary determination, then the person is not afforded a hearing to determine if he or she “exhibits characteristics showing a tendency to victimize or injure others.” Rather, in lieu of that determination, the board draws an inference from the person’s past record. Thus, in effect under the rule, a person like petitioner is given only the opportunity to controvert the second statutory requirement, i.e., the person’s past record. The flaw in the board’s rule is the failure to require the kind of factual determination regarding the person’s existing tendencies (based on the characteristics that the person “exhibits” at the time of the classification) contemplated by the legislature.4 Stated otherwise, in the language of ORS 174.010,5 the majority fails in its reasoning to declare what is contained in the language of the statute by omitting from its interpretation of the statute the import of the words “exhibits characteristics.”
Nonetheless, the majority asserts that “[n]othing in the text of ORS 181.585(1) precludes the department or the board, in carrying out that legislative mandate, from relying solely on an offender’s previous convictions to determine his or her present risk of reoffending.” 188 Or App at 625. However, a more careful examination of the text of subsection (1) belies that assertion. The present tense of the word “exhibits” when used with the word “characteristics” in subsection (1) unambiguously refers to the offender’s “identifying qualities or traits” at the time of classification. Webster’s Third New *643Int’l Dictionary, 376 (unabridged ed 1993). Those words precede the phrase “showing a tendency to victimize or injure others,” and they appear together before the word “and,” a word that operates to set the second requirement apart from the first requirement. If the legislature had intended that the determination of the person’s “tendencies” be based solely on the circumstances of the person’s past record, it would not have used the words “exhibits characteristics” as the designated means under the rule by which tendencies to victimize or injure others are manifested, nor would it have inserted the participial phrase “showing a tendency to victimize or injure others” within the first requirement. Rather, the legislature would have used that phrase as part of the requirement of proof of the past commission of a listed sex crime and its underlying circumstances. Thus, for purposes of comparison, if the former had been the legislature’s intention, the statute would provide that
“a person is a predatory sex offender if the person has been convicted of a sex crime listed in ORS 181.594(2)(a) to (d), has been convicted of attempting to commit one of those crimes or has been found guilty except for insanity of one of those crimes and if the commission of those crimes showed a tendency to victimize or injure others.”
The majority is correct about one point. It does not necessarily follow from the mere fact that the legislature inserted an “existing tendency” element into the statute that, in the abstract, the tendencies of a person can only be demonstrated by evidence about the person’s characteristics at the time of the determination of the person’s status as a predatory sex offender. But the possibility about what the legislature could have done does not create an ambiguity in this statute in light of its actual wording. In writing ORS 181.585, the legislature expressly told us how “existing tendencies” are to be determined for purposes of predatory sex offender status. The insertion of the words “exhibits characteristics” into the statute by the legislation in combination with the phrase “showing a tendency to victimize or injure others” within the first requirement of the statute demonstrates unambiguously an intent that the person’s existing tendencies be determined by the consideration of the characteristics that the person exhibits. To hold as the majority does is to *644hold that the legislature intended that an offender’s tendencies be predetermined by his prior record or his past conduct. If that had been the legislature’s intent, there would have been no need to use the words “exhibits characteristics” in the statute.
The above understanding of the legislature’s intent is further confirmed if subsection (1) is read as a whole. What is immediately apparent is the contrast between the tense of the verb in the first requirement and the tenses of the verbs in the second requirement.6 The contrast between present tense and past tense verbs separated by the conjunction “and” can only mean that the legislature intended the agency to focus on two different time periods when it enacted the statute. However, the majority’s interpretation does not honor the legislature’s dual temporal focus because it permits the board to exclude evidence of a person’s existing characteristics at the time of classification from its determination.7
Nonetheless, according to the majority, the above analysis is “problematic for at least three reasons.” 188 Or App at 626. First, the majority asserts that the fact that the second requirement of subsection (1) focuses on the past does not mean that the person’s criminal history is “relevant only to that consideration.” Id. Second, the majority says that “an offender’s criminal history is logically and textually relevant to whether he or she ‘exhibits characteristics showing a tendency to victimize or injure others.’ ” Id. Of course, the majority is correct; the statute could have been written in the way *645that the majority interprets it. However, ORS 174.040 forbids courts from inserting words into or deleting words from a statute. Our task is to ascertain and declare what is in the statute and not to substitute our judgment for that of the legislature. At the risk of redundancy, the legislature has expressly said in ORS 181.585(1) that the tendency to victimize or injure others must be found from the manifestation of the “characteristics” that the person “exhibits.” Inferences drawn by the board from past criminal history are conceptually different from “characteristics” that a person “exhibits.”
Third, the majority asserts that
“the dissents unnecessarily discount the delegation of legislative authority to the department in ORS 181.585(2) to identify, in the first instance, those characteristics or combinations of characteristics that will define when a person shows a tendency to victimize or injure others.”
188 Or App at 626. According to the majority, that “delegation is broad enough to permit the department to develop a risk assessment scale that relies, as the department’s scale does, on an offender’s criminal history to make a present prediction about the offender’s future risk.” Id. However, subsection (2) does not give the agency carte blanche authority. Any risk assessment scale adopted by agency pursuant to the authority granted to it by subsection (2) must necessarily incorporate the statutory requirements for predatory sex offender status provided for in subsection (1). Any attempt by the agency to exercise its delegated authority in a manner inconsistent with those requirements is an invalid exercise of authority. Subsection (1) of the statute requires the board to make two determinations: the first regarding the person’s existing tendencies at the time of classification based on the characteristics that the person exhibits; and the second based on whether the person’s past record contains one or more of the listed sex crimes. The rule applied in this case fails in that regard for the reasons explained above. Because the text of the statute cannot be interpreted consistently with the rules of statutory construction in the way that the majority proposes, it follows that the board’s determination under the rule based solely on petitioner’s past record exceeds the authority granted to the board by ORS 181.585(1).
*646For that reason, I respectfully dissent.
Armstrong, Wollheim, and Brewer, JJ., join in this dissent.
In Noble, the court held that due process requires notice and an evidentiary hearing when the board proposes to designate a person as a predatory sex offender. According to the Noble court, the determination of whether the person exhibits characteristics showing a tendency to victimize or injure others is a “factual determination.” 327 Or at 497. The board, in making that determination undertakes an objective analysis of the offender’s criminal history and a subjective analysis of “whether the offender exhibits predatory behavior!.]” Id. The issue in this case, whether the department is authorized to adopt a scale that permits the board to infer solely from a person’s past convictions that the person exhibits characteristics showing a tendency to victimize or injure others, was not in issue in Noble. Nonetheless, the Noble court implicitly recognized in its opinion that ORS 181.585(1) imposes discrete requirements, the first of which is a subjective factual determination of whether the person exhibits the requisite characteristics. The second requirement requires only that the board objectively examine the person’s past record.
Because I believe that the text of ORS 181.585 is clear on its face, I would not resort to the legislative history in accordance with the rules of statutory interpretation. That position aside, there is nothing in the legislative history that particularly supports the majority’s interpretation of the statute. As is evident from the history recited by the majority, the legislature did not focus on the issue before us. At best, the legislative history demonstrates that the legislature intended that the department adopt a risk assessment scale to govern the determination of predatory sex offender status. In light of the language of ORS 181.585(2), that understanding is not a remarkable revelation.
Generally, automatic override factors or starred factors involve the nature of the prior convictions, their underlying circumstances and the presence or absence *642of sexual criminal history at the time of the commission of the offense that is the subject of the prior conviction.
The statute does not purport to limit the evidence that the board may consider regarding whether a person exhibits characteristics showing a tendency to victimize or injure others. It follows that under the statute, the board could properly make a finding that satisfies that requirement by drawing an inference from evidence of past conduct, even in contravention of other evidence suggesting that the person no longer is a danger to others. The vice of the rule in light of the statute’s requirements is that it forecloses the opportunity for the board to consider competing evidence regarding the requirement under certain circumstances.
ORS 174.010 provides:
“In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible to be adopted to as will give effect to all.”
In Martin v. City of Albany, 320 Or 175, 181, 880 P2d 926 (1994), the Supreme Court explained,
“The use of a particular verb tense in a statute can be a significant indicator of the legislature’s intention. * * * [citing to and explaining the holdings in Gettman v. SAIF, 289 Or 609, 614, 616 P2d 473 (1980), and 1000 Friends v. LCDC, 292 Or 735, 746, 642 P2d 1158 (1982)].
“As those cases suggest, we do not lightly disregard the legislature’s choice of verb tense, because we assume that the legislature’s choice is purposeful. In most cases, we best effectuate the legislative intention by giving effect to the plain, natural and ordinary meaning of the verb tense chosen by the legislature.”
Moreover, as the Noble court observed, subsection (l)’s requirement that a person exhibit characteristics showing the required tendency requires a subjective determination while the determination regarding the person’s past record is objective in nature. Noble, 327 Or at 498. Notably, the majority’s interpretation dispenses with any subjective determination.