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                                June’l3,         .I974           ..


The Honorable Ed J. Harris,     Chairman               Opinion No, H- ‘326
Elections Committee
House of ReprerentativesN       :        :       e       ,Re: Effectof   holding
P. 0. Box 2910,                     :'                        atate p0IitCcal,
Austin, Texas 78767                                           convention on date
                                                              of a religious
Dear Representa&ve     Harris,:                               observance.’
     ,.,,                             :.
    You have requested our opinion on four questions oCcasioned by ,,
the fact that the date for the major state political party conventions
this year coincides with the date of a major religious observance,
which in this case is Rosh Hashanah.

    The dakof    the State’convention of a party is set by Article            13. 35,
Texas Election   Code, which provides:     ‘.

             A,ttie meeting of the State Executive Cammittee
        h,eld on the ~second Monday in March preceding each
        general primary election the said committee shall
        decide upon,the hour and place where the State con-
        vention of the,party shall .bs held on the third Tuesday
       -in September, 1960, and each two (2) :years thereafter.
       .The chai,rman, of the’State executive committee shall
        file +th,the Secretary of State a notice of the, hour
        and- place of holding the State :convention and a qopy
        of such n,oti,ca ,shal be~mailed to,the county chairman
        of that party in,each.county in the State at least ten (10)
        day.s before the convention is. held.

Article 13.38, Texas Election Code, ,a160 requires              the, conventions   ta
be held on that same date. It provides in part:




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The Honorable     Ed J. Harris,    page 2. (H-326)




              The state conve.ntion ta announce a platform of
         principles    and to announce nominations for Governor
         and other state offices,, ,held by a political party
         making nominations by primary election, shall meet
         on the third Tuesday in September of each even-numbered
         year at such place as may,be dete’rmined by.the state
         executive committee as provided in [Article 1$35],‘of
        ‘this,. Co’dsi Andyshall remain in session.fr,&   :day. to ”
         day ‘until ‘alI.nominations are announced and’the work
         oftbe’ convetitionis    finished.

See, Artiale’,,l3.‘58; Texas Election Code,‘.for’ statutory,provisions’
governing the date of the convention to select national convention dele-
gates:    ‘. ‘. ” ”                                ,I.
       :        :i            ,,                . ..                :
    Your: first questia,n i:s:,
                                                     .‘I
         ,;Are the political parties required to hold state con-
        ~~~~ve’nti’odns
                      on-the thir’d Tuesday.inSeptember      bound’to
      ‘, that date or; if a situationhxi.sts.wiiich     .pres’ents a ‘, ‘f
          possibility   of discrimination by basis of religion,
          may they’ set the&te       fo’r’their state conventions ‘for
           some otherday?          ’                             ,,,,


    In Articles    13. 35 and”l3. 38,the Legislature repeatedly uses the
ve-e~t%h~l~;e    “’ShaIl”‘ordinarily   is u.sed to indicate a mandatory require-
                y v. State;~‘3213 S;W. 2$355 (Tex. G’riini, 1959), ,and unless
the context iridicates’ ,otherwise it ‘is presumed to’be us’ed in the imperative
sense.   McLdren v. State, I99 S. W; i)l,l (Tex. Ciim.        1917). Cfi’, Hess &
Skinner Engineeiing”‘Co.      ‘v. Turney; 20’3 S. W. 593 (Tex., 1918); In these
statutes the context su&ests that the word “shall”, which is ‘used six
times in the portions of the two Articles quoted above, is employed in
its mandatory sense.        We have’found nothing to indicate an intent to
permit a political party executive committee to provide for the con-
vening of the state convention at sometime other than the date certain
set by the Legislature.

     We do not believe the statutory designationof     the third Tuesday in
September as the date for the state party conventions is constitutionally
infirm.  Arguably,    it could be said that the selection of that date is



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The Honorable      Ed J. Harris,    p+geI 3., @I-326), :,




 violative~ of the equal protection c,lause of the. Fourteenth Amendment
 to the extent that there might be a tendency to.disenfranchise               Jewish
 delegates and of the due:Frocese clausal of the same amendment insofar
 as it incorporates    the First Amendment <guarantees of freedom, of religion.
 However,     so long. as a, statute ,isLbased on reason and does 3not’involve
 invidious discrimination       the ,equal .protection clau.se does not subject it
                 .
 to a constituttpnal .straitjacket.      Jefferson, v. H acknee, 406,.U. S, 535
 (1972). The r.equirement that, the, 1974 ‘state .party conventions be
 convened on the, s,ame day a’s the obseryance of Rosh Hashanah cannot
 be construed as involving intentional discrimination.                The .data of
 Rosh.Hashanah.is      governed by the phases of the moon,subject to
 several variable,s inherent In the Jewiah.calendar;              Tlrc,~chan,ces :~ofit
 ceihoiding ~.with::the.third..Tuesday. in September in an .even-.numbered
.year.are    remote., and we have been informed .that..tbe dates will not .:
 coincide .again~within thir cen!zry,          Clearly such a coincidence is
 not.invidious discrimination.        F’or the.ssme reasons..we,.b,elieve the
 statute does not contravene the religious protections             afforded by the
 Constitution.     The United States Supreme Court recently held that
 there i.s no First Arhendmentviolation           if the .statute is religi,ously
 neutral and ,is ,nei,ther ,arbitr~,ryna“invi,dious.r: ” Gillette v. U. S. ,,, 4,O.l
 U.S,~.4!37,(1971),,.        ,,; ‘,’        ‘,~I,~ .’

     Therefore,.~ it is our opinion that a, political party subject to the
protisi,ons.,:of A~rticl.es 13. 35 and 13.,38 is required to hold its 1974
state :con.vention on September 1.7.

I,‘,, ‘,Your second question is:               ,j        j ,,       ~~.._’     :
 :,      .If the.political ,parties.may’ not ,,chsnge,%e date f,or, the
          opentng of their, state,conventi,a’ns, is, th.ere~.any.l.egal
       i barrier which would bar them from holding only ,a pro-’
          forma. sessio~n a.t which no bu:siness is tr.ansa.cted,:on
          the. .statutor,y date.and then adjourn or recess to a
          later date?,        “.

    It is clearly within the contemplatton of the stakte that a’convention
may requi.:re more than one day. Article 13. 38 provides that the con-
vention “shall wmai,n in session from day to day until all nominations
are announced and the work of the coaventiop is’completed.    “. Wee have
found no statuto.ry requirement that any particular. type or amount of
business be compl.eted on the opening day, and therefor,e, we see no
legal objection to convening the convention on September 1,7, but con-

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The Honorable    Ed J. Harri’e;   pqgi 4 ~.(H-a26)




tinuing the bulk of the cenventfon’s   business from day to day.

    Your   third questi6n   is:

        Should the politic,al parties refuse to :follow.thc pattern           ”
        suggested in question two (above), would they be open
        to a challenge in the courts based on a claim tha’t they
        are in violation of,,the.non-disc,rimination,prot+sions
        of their ownparty    rules?
                                    .,.
    The, three polWica1 parties currently required tohold a state con-
vention on the,thidd Tuesday in~~beptemberall prohibit religious
diecrfmination    in their party rulei.: Rules of’tha Democratic  Party of
Texas, Article I; Xtilcs of the Republican ,Party of’Texas,     Rule,No. 3;
Rules far La Raea Unida Party, Article III,, Party rules,’ however,
must be interpreted inflight of the statute and may’not berccnstrued to
contlict’with  statutory requirements.    ArticIe 13.43b, Texas Election
Code.               /

     Technically,  a po,liti.cal party’s actions woul,d be ,subject to challenge
If the party declined to recess until the end of the periodof religious
observance    since any person who felt aggrieved might seek to enforce
his rights in court.   However, for the same reasons given in our dis-
cussion of the constitutionality of the statute, we believe a challenger’s
chance of success would be minimal, u’nles,s he could establish that
the party acted with the intent of disenfranchising      Jewish delegates.
Cf. , Whitcomb v, Chavis. 403 U.S. 124 (1971).

                            SUMMARY

             A, political party subject’ to the provisions of
        Articles    13. 35 aad 13,,38, Texas Election Code, is
        required to ,convene its ,state convention on the third
        Tuesday in September of even-numbered years even
        when that date coiacidentally is the same as the date




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    The Honorable   Ed J. Harrib,   page 5   (H-326)




           of a religious observance.   The party is not’
           preclu+ed from convening on that day, recessing
           and conducting the bulk of its business on sub-
           sequent days.




    DAVID M; KENDALE,        Ghiirman
    Opinion ,Coz?miittee




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