IN RE: THE MARRIAGE OF J.B. AND H.B. IN RE STATE OF TEXAS (2010)

SUPPLEMENTAL OPINION ON MOTION FOR EN BANC RECONSIDERATION

Opinion By Justice FitzGerald

Appellee J.B. has filed a motion for en banc reconsideration.   The motion is denied.

In his motion, Appellee asserts that we erred by ignoring his arguments on appeal that article I, section 32(a) of the Texas Constitution and section 6.204 of the Texas Family Code violate the Due Process Clause, the First Amendment right to free association, and the constitutional right to travel.   In its amended order denying the State's plea to the jurisdiction, the trial court ruled that section 6.204 of the family code violates all of those rights.   But, as noted in our original opinion, that order was a legal nullity because it was signed during the automatic stay imposed by section 51.014(b) of the civil practice and remedies code.

Appellee did not present his constitutional challenges based on due process, the right to free association, and the right to travel to the trial court, and the State had no opportunity to respond to them in that court.   We will not consider grounds for affirmance that were not presented to the trial court and to which the other side had no opportunity to respond.  Victoria Gardens of Frisco v. Walrath, 257 S.W.3d 284, 289-90 (Tex.App.-Dallas 2008, pet. denied);  see also Guar. Cnty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex.1986) (per curiam);  cf.  City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex.1986) (court of appeals should not have addressed appellant's constitutional challenge that was never presented to the trial court).

Appellee's motion for en banc reconsideration is denied.

091170SF.P05

KERRY P. FITZGERALD JUSTICE