State v. Erasmo Montalvo

ACCEPTED
03-13-00370-CV
5055113
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/28/2015 8:22:12 AM
JEFFREY D. KYLE
CLERK
CASE NO. 03-13-00370-CV

FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS AT4/28/2015
AUSTIN 8:22:12 AM
JEFFREY D. KYLE
Clerk

STATE BOARD FOR EDUCATOR CERTIFICATION and
MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
CAPACITY ONLY,
Appellant,

v.

ERASMO MONTALVO,
Appellee.

On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause
No. D-1-GN-12-002991; Before the Honorable Tim Sulak

APPELLANT’S BRIEF

KEN PAXTON ELLEN M. SAMETH
Attorney General of Texas Assistant Attorney General
State Bar No. 17555550
CHARLES E. ROY ADMINISTRATIVE LAW DIVISION
First Assistant Attorney General OFFICE OF THE TEXAS ATTORNEY GENERAL
P. O. Box 12548
JAMES E. DAVIS Austin, Texas 78711-2548
Deputy, Attorney General for Civil Telephone: (512) 936-1838
Litigation Facsimile: (512) 457-4608
E-mail: ellen.sameth@texasattorneygeneral.gov
DAVID A. TALBOT, JR
Chief, Administrative Law Division Attorney for Appellant, State Board for
Educator Certification
April 27, 2015
 IDENTITIES OF PARTIES AND COUNSEL

PARTIES TO THE TRIAL COURT’S ORDER:

Plaintiff/Appellant: State Board for Educator Certification and Michael
Berry, the Acting Chief Executive Officer of the State Board for Educator
Certification, in his Official Capacity Only1

Defendant/Appellee: Erasmo Montalvo

COUNSEL:

For Appellant, State Board for Educator Certification:

Ellen M. Sameth
Assistant Attorney General
State Bar No. 17555550
OFFICE OF THE TEXAS ATTORNEY GENERAL
ADMINISTRATIVE LAW DIVISION
P.O. Box 12548
Austin, TX 78711-2548
Telephone: (512) 936-1838
Facsimile: (512) 457-4608
Email: ellen.sameth@texasattorneygeneral.gov

For Appellee, Erasmo Montalvo:

Mark W. Robinett
State Bar No. 17083600
BRIM, ARNETT, ROBINETT,
CONNERS & MCCORMICK, P.C.
2525 Wallingwood Drive, Bldg. 14
Austin, Texas 78746
Telephone: (512) 328-0048, x110
Facsimile: (512) 328-4814
E-mail: mrobinett@brimarnett.com

1
Michael Berry was released as a Defendant by Agreed Order dated March 28, 2013. See App.
C.
ii
 TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ........................................................ ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES......................................................................................v
STATEMENT OF THE CASE .............................................................................. viii
REQUEST FOR ORAL ARGUMENT .....................................................................x
ISSUES PRESENTED............................................................................................. xi
STATEMENT OF FACTS ..................................................................................... xii
SUMMARY OF THE ARGUMENT ........................................................................2
ARGUMENT & AUTHORITIES .............................................................................3
ISSUE I. .....................................................................................................................4
The trial court erred in failing to find substantial evidence in the
administrative record to support the Board’s Final Decision and Order. .........4
A. The Board has authority to issue sanctions without Code of Ethics
violations. ........................................................................................4
B. The ALJ misinterpreted and misapplied the standard of “unworthy
to instruct.”......................................................................................5
1. The Board requires conduct to support a sanction, it does not
require Code of Ethics violations. .........................................5
ISSUE II. ....................................................................................................................8
The Board properly amended the Proposal for Decision in Compliance with
the Administrative Procedure Act.....................................................................8
A. The Board properly amended the Proposal for Decision to comport
with the findings of fact. ...............................................................8
1. The ALJ’s analysis supports finding poor judgment by
Montalvo. ...............................................................................9
2. The Board’s Order is not arbitrary or capricious. ................10
3. The Board’s interpretation of its rules is to be given
deference. .............................................................................12
4. The Board properly used the findings of fact to conclude that
Montalvo is unworthy to instruct.........................................13

iii
ISSUE III..................................................................................................................16
The Board’s standard of “unworthy to instruct” is not unconstitutionally
vague ...............................................................................................................16
A. The meaning and history of “unworthy to instruct.”.....................16
1. The “unworthy to instruct” language has been a part of
educator parlance since at least 1925...................................16
2. The “unworthy to instruct” standard, and analogous
standards, have been upheld in case law. ............................18
B. “Unworthy to instruct” applies to Montalvo despite the lack of
other disciplinary violations..........................................................22
ISSUE IV. ................................................................................................................24
The trial court abused its discretion in issuing a permanent injunction. .......24
CONCLUSION ........................................................................................................25
PRAYER ..................................................................................................................26
CERTIFICATE OF COMPLIANCE .......................................................................27
CERTIFICATE OF SERVICE ................................................................................28

iv
 INDEX OF AUTHORITIES

Cases

Bexar Metro. Water Dist. v. Tex. Comm'n on Envtl. Quality,
185 S.W.3d 546 (Tex. App.—Austin 2006, pet. denied) .............................. 12, 13

Brantley v. Tex. Alcoholic Beverage Comm’n.,
1 S.W.3d 343 (Tex. App—Texarkana 1999, no pet.) ............................................3

Dodd v. Meno,
870 S.W.2d 4 (Tex. 1994) ....................................................................................12

Gerst v. Nixon,
411 S.W.2d 350 (Tex. 1966) ..................................................................................3

Gomez v. Tex. Educ. Agency,
354 S.W.3d 905 (Tex. App.–Austin 2011, pet. denied) .......................................11

In re Gamble,
71 S.W.3d 313 (Tex. 2002....................................................................................24

In re State Bd. for Educator Certification,
No. 13-0537, 2014 Tex. LEXIS 1208; (Tex. December 19, 2014).... ix, 14, 15, 24

In re State Bd. of Educator Certification,
411 S.W.3d 576 (Tex. App.—Austin 2013, orig. proceeding) ..................... ix, viii

Jordan v. State Bd. of Ins.,
334 S.W. 2d 278 (Tex. 1960) ........................................................................ 20, 21

Key Western Life Ins. Co. v. State Board of Insurance,
350 S.W.2d 839 (1961).........................................................................................20

Marrs v. Matthews,
270 S.W. 586 (Tex. Civ. App.—Texarkana 1925, writ ref’d) ..................... passim

Martinez v. Tex. State Bd. of Med. Exam’rs,
476 S.W.2d 400 (Tex. Civ. App.—San Antonio 1972, writ ref’d n.r.e.) .............20

v
McHaney v. Tex. Comm'n on Envtl. Quality,
2015 Tex. App. LEXIS 1903 (Tex. App.— Austin Feb. 27, 2015, no pet.)
(mem.op.)..........................................................................................................3, 24

R.R. Comm'n v. Torch Operating Co.,
912 S.W.2d 790 (Tex. 1995) ..................................................................................4

Rodriguez v. Serv. Lloyds Ins. Co.,
997 S.W.2d 248 (Tex. 1999) ......................................................................... 12, 13

State Bd. for Educator Certification v. Montalvo,
No. 03-12-00723-CV, 2013 Tex. App. LEXIS 4389 (Tex. App.—Austin April 3,
2013, no pet.) (mem. op.) ................................................................................... viii

Storey v. Cent. Hide & Rendering Co.,
226 S.W.2d 615 (Tex. 1950) ................................................................................24

Tex. Alcoholic Beverage Comm’n. v. Sanchez,
96 S.W.3d 483 (Tex. App.—Austin 2002, no pet.)................................................3

Tex. Alcoholic Beverage Comm’n. v. Sierra,
784 S.W.2d 359 (Tex. 1990) ..................................................................................3

Tex. Health Facilities Comm'n v. Charter Med.–Dall., Inc.,
665 S.W.2d 446 (Tex. 1984) ..................................................................................3

Tex. State Bd. of Dental Exam’rs v. Sizemore,
759 S.W.2d 114 (Tex. 1988) ..............................................................................3, 4

TGS NOPEC Geophysical Co. v. Combs,
340 S.W.3d 432 (Tex. 2011) ................................................................................11

Triantaphyllis v. Gamble,
93 S.W.3d 398 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) ................24

Vista Healthcare, Inc. v. Tex. Mut. Ins. Co.,
324 S.W.3d 264 (Tex. App.—Austin 2010, pet. denied) .....................................20

Zimmer US, Inc., v. Combs,
368 S.W.3d 579 (Tex. App.—Austin 2012, no pet.)............................................13
vi
Statutes

Tex. Educ. Code
§ 13.046 ............................................................................................................... 18
§ 13.046(a)(2) .......................................................................................................18
§ 21.035 ................................................................................................................ xi
§ 21.041(7), (8); 19 .................................................................................................5
§§ 21.031(a), .041(b)(1)(7)(8) ..............................................................................23
§§ 21.031(a); 21.041(b)(1)(7).................................................................................4
§ 21.041(7) (West 2012).........................................................................................3

Tex. Gov’t Code
§ 2001.058(e) ..........................................................................................................9
§ 2001.058(e)(1) ...............................................................................................9, 26
§ 2001.175(e) ..........................................................................................................4

Other Authorities

74th Leg., R.S. ch. 260, § 58(1), 2003 Tex. Gen. Laws 2498 ..............................18

SBEC Disciplinary Policy ............................................................................. 21, 25

Tex. Rev. Civ. Statutes 1911, art. 2884 [2814] ...................................................18

Tex. Rev. Civ. Statutes art. 2814 ............................................................................5

Rules

19 Tex. Admin. Code
§ 247 .......................................................................................................................7
§ 249 .......................................................................................................................7
§ 249.15 ................................................................................................................17
§ 249.15(a), (b)(3) ..................................................................................................5
§ 249.15(b)(2) ................................................................................... xi, 2, 5, 17, 22
§ 249.3(45)............................................................................................................17
§ 249.5 ..............................................................................................................4, 21
§§ 249.15(a)(4) .....................................................................................................17
§§ 249.3(59)............................................................................................................2

vii
 STATEMENT OF THE CASE

Trial Court Disposition: The trial court issued a Judgment reversing the
Board’s Final Decision and Order and issuing a
permanent injunction against the Board. CR2 3, or
see App. A.

Trial Court: 200th District Court, Travis County, Texas, before
the Honorable Tim Sulak.

Course of Proceedings: The Board issued a Final Decision and Order on
August 10, 2012. 1 AR 67, or see App. B.

A timely motion for rehearing was filed and
overruled by operation of law.

On September 25, 2012, Montalvo filed an
Original Petition for Temporary Restraining Order,
Temporary Injunction and Permanent Injunction.
The trial court issued both a temporary restraining
order and temporary injunction. Following the
filing of an interlocutory appeal, this Court
reversed and dissolved the temporary injunction
for lack of a trial setting in the order. State Bd. for
Educator Certification v. Montalvo, No. 03-12-
00723-CV, 2013 Tex. App. LEXIS 4389 (Tex.
App.—Austin April 3, 2013, no pet.) (mem. op.).

On March 28, 2013, the trial court issued an
Agreed Order Dismissing Michael Berry as a
defendant. See App. C.

On April 29, 2013, the trial court issued its
Judgment reversing the Board’s Order and issuing
2
“CR” refers to the Clerk’s Record. The number following refers to the page number. “AR”
refers to the Administrative Record as this matter involved administrative proceedings at the
agency level. The Administrative Record consists of nine volumes. The Administrative Record
will be cited as, e.g., 2 AR *, where “2" refers to the volume and “*” represents a page number
within the given volume. “FOF” and “COL” refer to findings of fact and conclusions of law,
respectively.
viii
a permanent injunction (effective until a ruling on
this appeal) against the Board, prohibiting it from
treating Montalvo’s educator certificate as
revoked, revoking his certificate, or superseding
the court’s Judgment following payment of a bond
by Montalvo, should the Board appeal.

The Board filed a Petition for Writ of Mandamus
and a Motion for Temporary Relief, both of which
the Third Court of Appeals denied. In re State Bd.
of Educator Certification, 411 S.W.3d 576 (Tex.
App.—Austin 2013, orig. proceeding).

The instant appeal was abated while the Board
sought relief in the Texas Supreme Court by filing
a Petition for Writ of Mandamus. The Supreme
Court denied relief. In re State Bd. for Educator
Certification, No. 13-0537, 2014 Tex. LEXIS
1208, (Tex. Dec. 19, 2014).

ix
 REQUEST FOR ORAL ARGUMENT

Pursuant to Rule 75, Texas Rules of Appellate Procedure, Appellant, State

Board for Educator Certification, requests oral argument in this case. Because the

issues involved concern the Board’s interpretation and application of a principle

central to its authority to regulate educators, the Board believes that oral argument

will assist the Court in its analysis and resolution of this case.

x
 ISSUES PRESENTED

ISSUE I.

The trial court erred in failing to find substantial evidence in the
administrative record to support the Board’s Final Decision and Order.

ISSUE II.

The Board properly amended the Proposal for Decision in
compliance with the Administrative Procedure Act.

ISSUE III.

The Board’s standard of “unworthy to instruct” is not
unconstitutionally vague.

ISSUE IV.

The trial court abused its discretion in issuing a permanent injunction.

xi
 STATEMENT OF FACTS

Erasmo Montalvo, Appellee, holds an educator certificate. Montalvo was

employed as a middle school teacher and served as a track and field coach at the

high school in the Rio Grande City Consolidated Independent School District at

the time the disciplinary case against him arose. 1 AR 62 (FOF #5), or see App. D.

VS was a female senior high school student, under the age of 18, and an athlete on

the track team, coached by Montalvo. 1 AR 62 (FOF #6). The Texas Education

Agency (TEA), as the administrative arm of the Board, (see Tex. Educ. Code

§ 21.035,3) opened a disciplinary complaint against Montalvo, and filed its

Original Petition with the State Office of Administrative Hearings on August 2,

2011. In its Original Petition, TEA alleged that Montalvo is unworthy to instruct

or supervise the youth of this State (hereinafter “unworthy to instruct”), as well as

four violations of the Educators’ Code of Ethics. 2 AR 75. Being “unworthy to

instruct” is not a Code of Ethics violation but is a separate finding that the Board

may make against an educator regardless of whether there are violations of the

Code of Ethics. Upon finding that an educator is unworthy to instruct, the Board

has authority to sanction the educator’s certificate, as it did in Montalvo’s case.

See 1 AR 67; 19 Tex. Admin. Code § 249.15(b)(2), attached and incorporated

herein as App. E.

3
All references to statutes and rules refer to those in effect at the time of the conduct made the
basis of the underlying administrative proceeding.
xii
 Montalvo’s specific conduct alleged by TEA includes: allowing VS, both

alone and with other students, to use the Jacuzzi in the master bath of his home;

asking VS lie on the bed in his master bedroom so he could massage her injured

leg; engaging in sexual relations with VS on school property; exchanging over 400

phone calls with VS, including many late at night; and, engaging in inappropriate

sexual contact with VS. 2 AR 73–75. In October of 2009, after hearing from VS

what had occurred, her college counselor filed a complaint with the Starr County

District Attorney’s Office, which indicted Montalvo. Following a trial for sexual

assault, Montalvo was acquitted. I AR 64 (FOF #33), or see App. D. Between the

time that the criminal complaint was filed and the time that Montalvo was found

not guilty, he was on paid administrative leave with the school district. 1 AR 43.

Following the verdict Montalvo was allowed to resume his duties with the school

district. 1AR 43.

The Administrative Law Judge found that Montalvo had not committed any

of the alleged Code of Ethics violations, was not unworthy to instruct, and that the

Board was not authorized to sanction him. 1 AR 64 (COL #6–8), or see App. D.

The Board issued its Final Decision and Order on August 10, 2012, revoking

Montalvo’s educator certificate. 1 AR 68, or see App. B. In doing so, the Board

xiii
adopted all thirty-three Findings of Fact in the PFD4 without change. Of the eight

Conclusions of Law, the Board modified two, and added a ninth.

Montalvo sought injunctive relief and judicial review of the Board’s Final

Decision and Order. On September 25, 2012, the trial court issued an ex parte

Temporary Restraining Order and, on October 9, 2012, following a hearing, a

Temporary Injunction. CR 96, 113.

The temporary injunction was overturned following an interlocutory appeal

by the Board, because the injunction was lacking a date for a trial on the merits.

After the trial on the merits, the trial court reversed the Board’s Final Decision and

Order, and issued a permanent injunction barring the Board from treating

Montalvo’s educator certificate as having been revoked. See App. A. The

injunction is to remain in effect pending the appellate court’s ruling on the Board’s

appeal.

4
Proposal for Decision issued by an Administrative Law Judge following a contested hearing
before the State Office of Administrative Hearings (SOAH).
xiv
 CASE NO. 03-13-00370-CV

IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN

STATE BOARD FOR EDUCATOR CERTIFICATION and
MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
CAPACITY ONLY,
Appellant,

v.

ERASMO MONTALVO,
Appellee.

On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause
No. D-1-GN-12-002991; Before the Honorable Tim Sulak

APPELLANT’S BRIEF

TO THE HONORABLE THIRD COURT OF APPEALS:

The trial court erred in reversing Appellant State Board for Educator

Certification’s (Board) Final Decision and Order, which revoked Appellee Erasmo

Montalvo’s (Montalvo) educator certificate after finding that it is not supported by

substantial evidence, and is arbitrary and capricious. Further, the trial court erred in

issuing a permanent injunction without balancing the equities. Accordingly, this

1
Court should reverse the Judgment of the trial court, and affirm the Board’s Final

Decision and Order.

SUMMARY OF THE ARGUMENT

There is substantial evidence in the record to support the Board’s Final

Decision and Order, which found that Montalvo is unworthy to instruct. In its

pleadings before SOAH, the Board alleged that Montalvo is not only unworthy to

instruct, but also violated four standards contained in the Educators’ Code of

Ethics, as well as other standards contained in the Board’s rules. 2 AR 75; see 19

Tex. Admin. Code chs. 247, 249. The ALJ did not find rule violations, or that

Montalvo is unworthy to instruct. 1 AR 64 (COL #6–7), or see App. D. The

Board adopted the ALJ’s findings of fact without changes. 1 AR 67. The Board

further determined that, based solely on Montalvo’s conduct as found by the ALJ in

FOF #11, 14, 18, 20, 22, 23, and 26, and Board standards, policies, and prior

decisions, Montalvo is unworthy to instruct or supervise the youth of this state. 1

AR 68, or see App. A; 1 AR 62–63 or see App. D The Board has authority to find

an educator unworthy to instruct based on conduct. 19 Tex. Admin. Code

§§ 249.3(59), .15(b)(2), or see Apps. E, F.

Furthermore, the “unworthy to instruct” standard is not unconstitutionally

vague so as to deprive Montalvo of due process, and has passed muster with Texas

2
appellate courts. Marrs v. Matthews, 270 S.W. 586, 589 (Tex. Civ. App.—

Texarkana 1925, writ ref’d).

ARGUMENT & AUTHORITIES

STANDARD OF REVIEW

Review of disciplinary decisions of the Board proceeds under the APA and

the standard of review is that of substantial evidence. Tex. Educ. Code § 21.041(7)

(West 2012). Under that standard the question for the reviewing court is the

reasonableness of the Board’s Order, not its correctness. Tex. Health Facilities

Comm'n v. Charter Med.–Dall., Inc., 665 S.W.2d 446, 452–453 (Tex. 1984); Tex.

Alcoholic Beverage Comm’n. v. Sierra, 784 S.W.2d 359, 360 (Tex. 1990);

Brantley v. Tex. Alcoholic Beverage Comm’n. 1 S.W.3d 343, 347 (Tex. App—

Texarkana 1999, no pet.); Tex. Alcoholic Beverage Comm’n. v. Sanchez, 96

S.W.3d 483, 489 (Tex. App.—Austin 2002, no pet.). The reviewing court cannot

substitute its own judgment for that of the Board. Tex. State Bd. of Dental Exam’rs

v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988). “The true test is not whether the

agency reached the correct conclusion, but whether some reasonable basis exists in

the record for the action taken by the agency.” Charter Med.-Dall., Inc., 665

S.W.2d at 452 (citing Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex. 1966)); McHaney

v. Tex. Comm'n on Envtl. Quality, 2015 Tex. App. LEXIS 1903 (Tex. App.—

Austin Feb. 27, 2015, no pet.) (mem.op.) (“We must sustain the agency's action if

3
it is supported by substantial evidence, meaning that the evidence is such that

reasonable minds could have reached the conclusion that the agency must have

reached in order to justify its action.”). Further, the administrative order is given

deference because of the agency’s expertise with the subject matter. R.R. Comm'n

v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995).

In applying the substantial evidence standard, there is a presumption that the

agency’s order is supported by substantial evidence in the record, and the burden is

on the one challenging that order to show that it is not. Sizemore, 759 S.W.2d at

116. Review is restricted to the administrative record. Tex. Gov’t Code

§ 2001.175(e).

ISSUE I.

The trial court erred in failing to find substantial evidence in the
administrative record to support the Board’s Final Decision and Order.

A. The Board has authority to issue sanctions without Code of Ethics
violations.

One of the most basic functions of the Board is to regulate educator conduct

and issue sanctions. Tex. Educ. Code §§ 21.031(a); 21.041(b)(1)(7); 19 Tex.

Admin. Code § 249.5, or see App. I. The Board has promulgated a Code of Ethics,

the violation of which may result in a sanction ranging from a non-inscribed

(private) reprimand to permanent revocation of the individual’s educator

4
certificate. Tex. Educ. Code § 21.041(7), (8); 19 Tex. Admin. Code, Ch. 247, §

249.15(a), (b)(3).

But, importantly, aside from the Code of Ethics, an educator is subject to

being sanctioned if found “unworthy to instruct.” 19 Tex. Admin. Code

§ 249.15(b)(2), see App. E. As early as 1911, Tex. Rev. Civ. Statutes, art. 2882

[2814] made reference to the authority of the then-State Superintendent of Public

Instruction to cancel a certificate “upon satisfactory evidence that the holder

thereof “[ . . . ] is a person unworthy to instruct the youth of this State[.]” See App.

G.; Marrs, 270 S.W. at 588. The Marrs case (discussed in more detail in section

B, below) is squarely on point as it involves an appeal based on the vagueness and

uncertainty of the term “unworthy,” as used in Tex. Rev. Civ. Statutes art. 2814, in

effect at that time. See App. G, attached; Marrs, 270 S.W. 586, 588.

By choosing to become part of any regulated profession, the license holder is

consciously and voluntarily making a choice to abide by the rules of that

profession.

B. The ALJ misinterpreted and misapplied the standard of “unworthy to
instruct.”

1. The Board requires conduct to support a sanction, it does not require
Code of Ethics violations.

The Board’s complaint alleged that Montalvo’s conduct indicates that he is a

person unworthy to instruct, and that he violated various disciplinary rules of the

5
Board. 2 AR 75. The ALJ found that none of the alleged violations were

substantiated. 1 AR 63–64 (FOF # 16, 21, 24, 25, 28–30, and COL #6–7), or see

App. D. To the contrary, the Findings of Fact support the Board’s action of

revoking Montalvo’s certificate because he is unworthy to instruct, including:

FOF #11 District protocol required that injured
students he sent to the trainer. (1 AR 62);

FOF #14 VS did not visit the trainer about her injury.
(1 AR 62);

FOF #18: Following her injury, VS underwent
stretching, rub downs, ice baths, and
whirlpool use under Mr. Montalvo’s
direction. (1 AR 63);

FOF #20: Mr. Montalvo gave VS, and other students,
rub downs. (1 AR 63);

FOF #22: On two or three occasions, student athletes
visited Mr. Montalvo’s home to use his
Jacuzzi in the master bath. The athletes
wore sports bras or bathing suit tops, and
brief “bikers” shorts. (1 AR 63);

FOF #23: On one occasion, VS went alone to Mr.
Montalvo’s house to use the Jacuzzi. (1 AR
63);

FOF #26: From February through June 2008, Mr.
Montalvo engaged in approximately 480
phone calls with Student 1,5 with over 80 of
the calls placed after 10:00 p.m. (1 AR 63).

5
Student 1 and VS are the same person.
6
 Montalvo did not challenge these findings. It is clear that there is substantial

evidence in the record for the Board to find that Montalvo is unworthy to instruct

based on his conduct, even though the ALJ failed to find a basis upon which the

Board could sanction Montalvo. There is testimony in the record attesting to the

fact that allowing students to come to your home to use the Jacuzzi in the master

bathroom is inappropriate and “unethical” (testimony of James Meguire, Head

Athletic Trainer at Rio Grande City High School, 4 AR 275, TR 295:21–296:5),

and that it is inappropriate (testimony of Rey Ramirez, Athletic Director at the Rio

Grande ISD, 4 AR 261, TR 241:13–18). There is also testimony that engaging in

over 400 telephone calls with a student in a four month period is a “little

excessive” and inappropriate (testimony of Rey Ramirez, 4 AR 261 TR 241:23–

242:2).

What the ALJ failed to grasp is that Montalvo’s conduct, as found by FOF

#11, #14, #18, #20, #22–23, and #26, speaks for itself in terms of demonstrating a

serious lack of judgment. These seven findings of fact indicate Montalvo’s

conduct – he did not object to any of them. It is that lack of judgment, leading to

Montalvo’s inappropriate and unacceptable behavior as an educator, which

indicates his unworthiness to instruct; violations of the Code of Ethics are

unnecessary.

7
 ISSUE II.

The Board properly amended the Proposal for Decision in
Compliance with the Administrative Procedure Act.

A. The Board properly amended the Proposal for Decision to comport with
the findings of fact.

The Board adopted, verbatim, all Findings of Fact and the first six of the

eight Conclusions of Law, modifying two, and adding one. The two Conclusions

of Law, as found by the ALJ, that are in issue are:

7. The foregoing Findings of Fact do not support a
conclusion that Mr. Montalvo is a person unworthy
to instruct or supervise the youth of this state.

8. SBEC is not authorized to take disciplinary action
against Respondent’s Texas Educator Certificate.

I AR 64. The Board modified those conclusions, and added a ninth one in its Final

Decision and Order:

7. Based on Findings of Fact 11, 14, 18, 20, 22, 23
and 26, Respondent exceeded the bounds of the
proper educator–student relationship and is a
person unworthy to instruct or supervise the youth
of this state.

8. SBEC is authorized to take disciplinary action
against Respondent’s Texas Educator Certificate.

9. Respondent’s educator certificate should be
sanctioned.

8
 Based on Montalvo’s conduct as found in the Findings of Fact, there is

nothing arbitrary or capricious about the Board’s Final Decision and Order. It is

reasonable, given the Findings of Fact, for a state licensing board charged with

regulating educator conduct in an effort to ensure the safety of schoolchildren, to

find that Montalvo’s judgment and subsequent actions placed those children at

risk.

Further, the changes were made by the Board in compliance with Tex. Gov’t

Code § 2001.058(e); they are supported by substantial evidence in the record (as

noted by the references to the specific findings of fact relied upon); were made, as

permitted under Tex. Gov’t Code section 2001.058(e)(1), because the ALJ

misinterpreted and misapplied the Board’s rule regarding “unworthy to instruct;”

and were explained in the Board’s Final Decision and Order, tying the findings to

the Board’s philosophy and perspective. I AR 67–69, or see Appendix B.

1. The ALJ’s analysis supports finding poor judgment by
Montalvo.

In her analysis of the evidence, the ALJ noted the following:

“A coach’s talking to a student by telephone 480 times
over five months is certainly a matter to trigger concern.”
I AR 59 (App. D);

“Mr. Montalvo unquestionably exercised bad judgment
in opening his master bath to students, and especially to
one female student alone—even if Mr. Montalvo’s wife
was at home at the time.” 1 AR 61 (App. D).

9
 Thus, the ALJ found at least two of Montalvo’s decisions to be of

questionable judgment and a cause for concern despite the conclusion in the PFD

that the Board has no basis upon which to sanction his certificate. Based on the

totality of Montalvo’s questionable actions, the Board, as the final arbiter of the

sanction, properly determined that Montalvo is unworthy to instruct or supervise.

The Marrs decision is instructive, because it speaks to educator “qualities.”

See Marrs, 270 S.W. at 588. In fact, what the Marrs Court opines is that there are

“many characteristics which may and should be considered in passing upon the

issue of unworthiness in a teacher” and that they are too many and varied to

enumerate. Id. at 588. The judgment of an educator is integral to that educator’s

worthiness, or unworthiness, to instruct or supervise the youth of this state.

2. The Board’s Order is not arbitrary or capricious.

As shown by both the Findings of Fact and the concerns found by the ALJ in

her analysis of Montalvo’s conduct, there is clearly a basis for reasonable minds to

come to the same conclusion that the Board came to, that is, to find that Montalvo

is unworthy to instruct. The Board, as was the ALJ, is concerned about

Montalvo’s judgment and behavior but, unlike the ALJ, the Board also correctly

interpreted and applied the Findings of Fact to find that Montalvo is unworthy to

instruct.

10
 Reiterating the standard involved in a substantial evidence appeal, the

question is not the correctness of the agency’s order, but its reasonableness. To be

“arbitrary and capricious,” there must be a lack of guiding principles:

When there is vagueness, ambiguity, or room for policy
determinations in a statute or regulation, we generally
defer to the agency's interpretation unless it is “plainly
erroneous or inconsistent with the language of the statute,
regulation, or rule.” TGS NOPEC Geophysical Co. v.
Combs, 340 S.W.3d 432, 438 (Tex. 2011). But this
deference to the Board's interpretation is not conclusive
or unlimited—we defer only to the extent that the Board's
interpretation is reasonable.

Gomez v. Tex. Educ. Agency, 354 S.W.3d 905, 912 (Tex. App.–Austin 2011, pet.

denied). The Board’s “unworthy to instruct” determination is rationally related to

Montalvo’s conduct; even the ALJ expressed concern about that conduct in her

analysis of the evidence. It is reasonable for the Board to be concerned about

Montalvo allowing students to use the Jacuzzi in his master bath, including on one

occasion VS, a female under the age of 18, alone. It is equally reasonable for the

Board to be concerned about hundreds of phone calls having taken place during a

four–month period between VS and Montalvo. Those facts are just two of the

many taken into account when the Board found Montalvo to be unworthy to

instruct. Moreover, Montalvo did not appeal any of the findings of fact in his suit

for judicial review. Montalvo’s conduct goes beyond the fact that he did not

11
violate the Code of Ethics; what matters is that the inappropriate conduct itself

occurred.

3. The Board’s interpretation of its rules is to be given deference.

The “unworthy to instruct” standard is broader than Code of Ethics or other

standards. As a result, whether or not Montalvo violated the Board’s rules is not

dispositive of whether or not he is “unworthy to instruct.” The ALJ’s conclusion

that the Board cannot sanction Montalvo’s certificate is an incorrect interpretation

of the Board’s rules, philosophy, and Disciplinary Policy. The Board has expertise

and a central role in protecting the welfare of schoolchildren and educators.

Because of that, Board’s conclusion finding Montalvo lacking in the judgment

necessary to be a role model for students and to protect them, must be given

deference.

The Board’s interpretation of its statutes and rules is to be given “serious

consideration, as long as the construction is reasonable and does not contradict the

plain language of the statute.” Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994); Bexar

Metro. Water Dist. v. Tex. Comm'n on Envtl. Quality, 185 S.W.3d 546, 550 (Tex.

App.—Austin 2006, pet. denied) (“We give great weight to the agency's

interpretation of its own rules and regulations, although such interpretation is not

binding on this Court.”). Administrative rules are ordinarily construed in the same

manner as statutes. Rodriguez v. Serv. Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.

12
1999). “Unless a rule is ambiguous, we follow the rule's clear language; when

there is vagueness, ambiguity, or room for policy determinations in a rule, we

defer to the agency's interpretation unless it is plainly inconsistent with the

language of the rule.” (Emphasis added). Zimmer US, Inc., v. Combs, 368 S.W.3d

579, 583 (Tex. App.—Austin 2012, no pet.). Further, agencies “must be afforded

sufficient flexibility to determine and carry out [their] clear legislative mandate.”

Bexar Metro., 185 S.W. 3d at 551.

There is nothing inconsistent or unreasonable about the Board’s

interpretation of the “unworthy to instruct” language. To force the Board to wait

for a proven injury to a student is asking it to abandon its duty to protect

schoolchildren. Because Montalvo’s judgment and behaviors as an educator are

questionable, the Board’s determination that Montalvo is unworthy to instruct

should be accorded deference and upheld upon the evidence contained in the

record. The fact that the ALJ concluded that no ethical standards were violated

and that Montalvo is not unworthy to instruct is irrelevant to the Board’s

determination, based on the facts recited in the PFD, that Montalvo is unworthy to

instruct.

4. The Board properly used the findings of fact to conclude that
Montalvo is unworthy to instruct.

It is clear from the discussion of the evidence in the PFD that the ALJ

analyzed each piece of evidence in terms of whether or not it demonstrated a
13
violation of a particular rule or standard, and if it indicated that Montalvo is

unworthy to instruct. But from the Board’s perspective, unworthiness to instruct is

not necessarily based on individual findings indicating poor judgment or ethical

violations but, rather, on the totality of findings. The fact that the ALJ found at

least two categories of behavior by Montalvo (excessive phone calls, and allowing

students to use the Jacuzzi in his master bath at home) to be questionable but not

indicative of Montalvo’s being unworthy to instruct, is not the end of the analysis.

In her concurring opinion in In re State Bd. for Educator Certification, No.

13-0537, 2014 Tex. LEXIS 1208 (Tex. December 19, 2014), Justice Guzman

wrote:

I also write separately today because I believe the record
before us fails to affirmatively indicate that the trial court
considered the potentially significant harm to
schoolchildren before effectively reinstating Erasmo
Montalvo's educator certificate pending the outcome of
the appeal.

2014 Tex. LEXIS 1208 at *20. Justice Guzman further opined:

But of at least equal import is the interest of
schoolchildren in not being exposed to the harm of
interaction with a teacher who fails to understand the
proper bounds of the student-teacher relationship. The
record before us reflects the trial court gave only cursory
(if any) consideration to the safety and welfare of Texas
students, declaring only that “[t]he competing equities
favor granting the injunction.” But evidence undisputedly
indicates that Montalvo, a high school track and field
coach and an elementary school physical education
coach, allowed a teenage female student—wearing only a
14
 sports bra and biker shorts—to use the Jacuzzi in the
master bathroom of his home while no one else was
present, called that female student over 480 times over a
four-month period (with over 80 calls occurring after
10:00 p.m.), gave several female athletes “rubdowns”
and ice baths, and failed to follow district protocol to
send an injured athlete to the trainer. The State Board for
Educator Certification determined these actions
exceeded the bounds of the proper educator-student
relationship and violated the trusted position of authority
afforded to Texas school teachers. Allowing Montalvo to
continue teaching after willingly exceeding the bounds of
the proper student-teacher relationship could
substantially harm the safety and welfare of Texas
schoolchildren.

Id. at *23–24 (emphasis added). While Justice Guzman was discussing the

issuance by the trial court of its injunction against the Board while the case is on

appeal, her observations clearly relate equally as well to the merits of this case and

go to the heart of the “unworthy to instruct” issue.

The Board has experience, expertise, and a thorough understanding of what

it means to find an educator to be unworthy to instruct. It is the Board’s

interpretation of the phrase, “unworthy to instruct,” which dictates whether or not

the pieces of evidence, as found by the ALJ, support such a finding. In this case,

there are no specific Code of Ethics or other rule violations. And, while individual

facts may not support a finding that Montalvo is unworthy to instruct, the Board

has explained that it is all of those findings together that indicate to it, that

Montalvo is unworthy to instruct. I AR 68–69, or see App. B. The Board’s Final

15
Decision and Order cites to seven findings of fact – the findings that speak to

Montalvo’s conduct and that went unchallenged in the trial court – found by the

ALJ that support its conclusion that Montalvo is unworthy to instruct.

In summary, the Board found that, based on the totality of circumstances,

Montalvo exceeded the boundaries of an appropriate educator-student relationship,

and is unworthy to instruct.

ISSUE III.

The Board’s standard of “unworthy to instruct” is not
unconstitutionally vague.

A. The meaning and history of “unworthy to instruct.”

1. The “unworthy to instruct” language has been a part of educator
parlance since at least 1925.

The standard of “unworthy to instruct” is not unconstitutionally vague or

otherwise a violation of Montalvo’s due process rights. The standard has a long

history with educators, in both law and case law. In fact, other professions have

analogous standards which have also been upheld.

The “unworthy to instruct” language appears in several places in the Board’s

rules. It is first referenced in § 249.3, the “Definitions” section relating to

disciplinary proceedings:

16
 Unworthy to instruct or to supervise the youth of this
state—the determination that a person is unfit to hold a
certificate under the TEC, Chapter 21, Subchapter B,6 or
to be allowed on a school campus under the auspices of
an educator preparation program.

19 Tex. Admin. Code § 249.3(45), or see App. F. The next reference is contained

in § 249.15(b)(2):

§ 249.15. Disciplinary Action by State Board for
Educator Certification
(a) Pursuant to this chapter, the State Board for Educator
Certification (SBEC) may take any of the following
actions:
...

(4) revoke or cancel, which includes accepting the
surrender of, a certificate without opportunity for
reapplication for a set term or permanently; or
...

(b) The SBEC may take any of the actions listed in
subsection (a) of this section based on satisfactory
evidence that:
...

(2) the person is unworthy to instruct or to supervise
the youth of this state;

19 Tex. Admin. Code §§ 249.15(a)(4), (b)(2) (emphasis added), or see App. E.

Thus, § 249.15 expressly authorizes the Board to revoke an educator certificate

based on being found “unworthy to instruct.”

6
Chapter 21, Subchapter B of the Texas Education Code is the chapter governing
the certification of educators.
17
 Section 13.046 of the Texas Education Code (now repealed), in noting when

an educator certificate is subject to cancellation, referenced “unworthy to instruct”:

(a) Any teacher's certificate issued under the provisions
of this code or under any previous statute relating to the
certification of teachers may be suspended or cancelled
by the state commissioner of education under any one or
more of the following circumstances:

...

(2) on satisfactory evidence that the holder is a person
unworthy to instruct the youth of this state; or

(emphasis added). Tex. Educ. Code § 13.046(a)(2) (Repealed by Acts of May 30,

1995, 74th Leg., R.S. ch. 260, § 58(1), 2003 Tex. Gen. Laws 2498. When the

Board came into existence, in 1995, various statutes were repealed, including

§ 13.046, and others promulgated. Even prior to § 13.046, reference can be found

to the authority of the then-State Superintendent of Public Instruction to cancel a

certificate “upon satisfactory evidence that the holder thereof “[ . . . ] is a person

unworthy to instruct the youth of this State. Tex. Rev. Civ. Statutes 1911, art.

2884 [2814]. See App. G.

2. The “unworthy to instruct,” and analogous standards, have been
upheld in case law.

Case law in Texas referencing “unworthy to instruct” also goes back at least

as far as 1925:

18
 The contention is that the term “unworthy,” as used in
article 2814, is too vague and uncertain to legally define
a disqualification to further hold a teacher's certificate.

Marrs, 270 S.W. at 588. Thus, in addressing Montalvo’s assertion that the

standard of “unworthy to instruct” is vague and ambiguous, the Marrs case is

directly on point. The Court opined:

The word “unworthy,” as used in common parlance, has
a well-defined signification. As here used, it means the
lack of “worth”; the absence of those moral and mental
qualities which are required to enable one to render the
service essential to the accomplishment of the object
which the law has in view. It may also include those
positive traits of character which, notwithstanding
excellent educational attainments, unfit one to impart
proper instruction to the young. To call one “unworthy”
is to impute moral delinquency to a degree of unfitness
for the work in hand. There are many characteristics
which may and should be considered in passing upon the
issue of unworthiness in a teacher in the public schools.
Different minds might reach different conclusions as to
what qualities of character should render one unworthy
to hold a certificate to teach. But there can be no
difference of opinion about the fact that an unworthy
person should not be permitted to teach in the public
schools. What qualities, or lack of qualities, should
render one unworthy would be difficult for legislative
enumeration. They are so numerous, and their
combinations so varied in different individuals, that a
statute which undertakes to be more specific would either
be incomplete, or so inflexible as to defeat the ends
sought. In the very nature of the subject there must be
lodged somewhere a personal discretion for determining
who are the “unworthy.”

19
(Emphasis added). Id. Aside from its detailed explanation of “unworthy to

instruct,” this passage in Marrs makes it clear that it is impossible to legislate all

circumstances in which one may be found unworthy to instruct. The Marrs case

has not been overruled.

Other cases upholding language that is analogous to “unworthy to instruct”

in that the language is not susceptible to exact definition and has been attacked as

too vague and ambiguous to be upheld, include: Jordan v. State Bd. of Ins., 334

S.W. 2d 278, 280 (Tex. 1960) (“Further the idea embodied within the phrase

[unworthy of the public confidence] is reasonably clear and hence acceptable as a

standard of measurement. And in this lies the true constitutional test.”); Martinez v.

Tex. State Bd. of Med. Exam’rs, 476 S.W.2d 400, 404 (Tex. Civ. App.—San

Antonio 1972, writ ref’d n.r.e.) (“The idea embodied within the phrase ‘grossly

unprofessional or dishonorable conduct of a character which in the opinion of the

Board is likely to deceive or defraud the public’ is reasonably clear.”); Key

Western Life Ins. Co. v. State Board of Ins., 350 S.W.2d 839 (1961), (authorizing

disapproval of a policy form if it "encourages misrepresentation"); Vista

Healthcare, Inc. v. Tex. Mut. Ins. Co., 324 S.W.3d 264, 274 (Tex. App.—Austin

2010, pet. denied) (“ . . . no requirement here that every detail of what constitutes

‘fair and reasonable’ . . . be set out by rule to provide Vista with fair notice of the

standards by which individual fee disputes will be adjudicated.”). And, as in

20
Marrs, these opinions support the proposition that the fact situations to which civil

statutes might apply are simply too numerous to legislate.

In Jordan v. State Bd. of Ins., 334 S.W. 2d 278, 281 (Tex. 1960), the Texas

Supreme Court includes in its opinion a list (citing to K. Davis, Administrative Law

Treatise, § 2.03 (1st ed. 1958)) of various “general” phrases – i.e., the same genre

as “unworthy to instruct” – which have passed muster with the United States

Supreme Court;

[T]he standards the Supreme Court [of the United States]
has held adequate include ‘just and reasonable,’ ‘public
interest,’ ‘unreasonable obstruction’ to navigation,
‘reciprocally unequal and unreasonable,’ ‘public
convenience, interest, or necessity,’ ‘tea of inferior
quality,’ ‘unfair methods of competition,’ ‘reasonable
variations,’ ‘unduly or unnecessarily complicate the
structure’ of a holding company system or ‘unfairly or
inequitably distribute voting power among security
holders.’”

The Jordan case also specifically cites to Marrs. See Jordan, 334 S.W. 2d at 281.

As evidence of just how central the concept of “unworthy to instruct” and

the Marrs case is to the Board and disciplinary actions, the Board cites to Marrs in

its Disciplinary Policy. 7 AR 688–690, or see App. J. Portions of the Board’s

Disciplinary Policy are now stated in rule (although this was not the case until

December 23, 2013), including its explanation of “unworthy to instruct.” 19 Tex.

Admin. Code 249.5.

21
B. “Unworthy to instruct” applies to Montalvo despite the lack of other
disciplinary violations.

The allegation that Montalvo is “unworthy to instruct or supervise the youth

of this state” stands as a separate basis for sanctioning an educator certificate and

does not rely on a violation of the Code of Ethics. 19 Tex. Admin. Code

§ 249.15(b)(2); I AR 64 (COL #5). The ALJ’s Findings of Fact, adopted verbatim

by the Board in its Final Decision and Order, support a finding of “unworthy to

instruct.” Thus, for example, while the ALJ did not find any romantic

underpinnings in the 480 phone calls over a four month period between Montalvo

and VS and therefore no violations of the Code of Ethics, the Board took exception

to the fact that there were 480 calls, determining that such an excessive number of

calls crossed the bounds of an appropriate educator-student relationship. I AR 67–

68. As another example, the fact that the ALJ failed to find that Montalvo had

sexually abused or assaulted VS when she went alone to Montalvo’s house to use

the Jacuzzi did not sway the Board, which, instead, took exception to the fact that

Montalvo allowed VS come to his home alone to use the Jacuzzi in his master

bathroom. 1 AR 67–68. The Board found that this conduct makes Montalvo

unworthy to instruct by “crossing the bounds of an appropriate student-teacher

relationship.” I AR 69, or see App. B

There is no doubt that allowing VS, a female high school student, into his

master bathroom to use the Jacuzzi, illustrates a lack of judgment on Montalvo’s
22
part. Additionally, the occurrence of 480 telephone calls during a four-month

period, with over 80 of them taking place after 10:00 p.m., further illustrates

Montalvo’s lack of judgment.

Montalvo’s conduct, as found by the ALJ’s Findings of Fact, exceeds the

bounds of a proper educator–student relationship. The Board relied on those

findings illustrating his conduct to find Montalvo unworthy to instruct.

Ultimately, whether or not improper conduct—beyond the ALJ’s Findings

of Fact—took place is not the issue. Thus, it does not matter whether the content

of the phone calls was romantic in nature. Stated another way, it is immaterial

whether the content of the phone calls implicated a Code of Ethics violation for the

Board to find that the conduct exceeded the bounds of an appropriate student-

teacher relationship and thus at least implicates the standard of “unworthy to

instruct.” Instead, the ultimate issue for the Board is the fact that Montalvo

engaged in these behaviors. That conduct alone demonstrates how Montalvo fails

to meet the expectations of the Board in protecting the welfare of students and

educators.

The legislature has given broad authority to the Board to carry out its

functions. Tex. Educ. Code §§ 21.031(a), .041(b)(1)(7)(8). The Board determined

that Montalvo’s judgment and behavior speaks louder than whether or not specific

standards in the Code of Ethics were violated. Reasonable minds could certainly

23
reach the same conclusion as the Board concerning Montalvo’s judgment. “The

substantial-evidence standard does not require ‘a large or considerable amount of

evidence’—in fact, the evidence may even preponderate against the agency's

finding—but requires only ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion of fact.’” McHaney, 2015 Tex. App.

LEXIS 1903 at *11.

ISSUE IV.

The trial court abused its discretion in issuing a permanent injunction.

The trial court improperly issued a permanent injunction, prohibiting the

Board from treating Montalvo’s educator certificate as having been revoked. See

App. A.

In issuing an injunction, the trial court must look not only at the elements

needed to support issuance, but it must also balance the equities. Triantaphyllis v.

Gamble, 93 S.W.3d 398, 401–02 (Tex. App.—Houston [14th Dist.] 2002, pet.

denied). Because an injunction is an equitable remedy, the equities on both sides

must be taken into account prior to issuance. In re Gamble, 71 S.W.3d 313, 317

(Tex. 2002); Storey v. Cent. Hide & Rendering Co., 226 S.W.2d 615, 618-19 (Tex.

1950). A failure to do so is an abuse of discretion, as here. In re State Bd. for

Educator Certification, 2014 Tex. LEXIS 1208 at *20; Triantaphyllis 93 S.W.3d at

402.

24
 As noted above in Justice Guzman’s concurring opinion, the trial court

failed to balance the equities prior to issuing its injunction and disallowing the

Board from superseding its ruling on appeal. See App. H (Trial Court’s Findings

of Fact and Conclusions of Law). Instead, the trial court looked only at the effect

on Montalvo if it did not grant his request for relief, and failed to look at the risk to

schoolchildren in allowing Montalvo to remain an educator pending any appeal by

the Board.

The trial court, in issuing an injunction against the Board without weighing

the equities, has abused its discretion and allowed Montalvo to continue in his role

as an educator, despite being found unworthy to instruct. As a result, the

schoolchildren that the Board has a duty to protect, have been put at risk.

CONCLUSION

The Court should reverse the trial court’s Judgment, including the

injunction, and affirm the Board’s Final Decision and Order revoking Monalvo’s

educator certificate, for the following reasons:

1. The ALJ misinterpreted and misapplied the standard of
“unworthy to instruct” as used in educator parlance;

2. There is substantial evidence in the record supporting the
Board’s finding that Montalvo, due to his judgment and
conduct, is unworthy to instruct;

3. No violations of the Educators’ Code of Ethics or other Board
rules are necessary to support a finding of “unworthy to
instruct;”
25
 4. The Board’s changes to the ALJ’s Proposal for Decision
comply with the requirements of the APA, § 2001.058(e)(1),
because the changes were made based on legal reasons
explained in its Final Decision and Order;

5. All changes to the Proposal for Decision are supported by
substantial evidence; and

6. The issuance of a permanent injunction against the Board was
an abuse of discretion.

PRAYER

Appellant, State Board for Educator Certification, respectfully requests that

this Court affirm the Board’s Final Decision and Order in SOAH Docket No. 701–

11–8468.EC in all respects and deny all relief sought by Appellee, Erasmo

Montalvo. Appellant prays for such other and further relief to which it may be

justly entitled.

Respectfully submitted,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

JAMES E. DAVIS
Deputy Attorney General for Civil Litigation

DAVID A. TALBOT, JR.
Chief, Administrative Law Division

26
 /s/ Ellen M. Sameth
ELLEN M. SAMETH
Assistant Attorney General
Texas State Bar No. 17555550
OFFICE OF THE TEXAS ATTORNEY GENERAL
ADMINISTRATIVE LAW DIVISION
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 936-1838
Facsimile: (512) 457-4608
E-mail: ellen.sameth@texasattorneygeneral.gov
ATTORNEYS FOR STATE BOARD FOR
EDUCATOR CERTIFICATION

CERTIFICATE OF COMPLIANCE
I certify that this Appellant’s Brief submitted complies with Tex. R. App. P.

9 and the word count of this document is 5,796. The word processing software

used to prepare this filing, and calculate the word count of the document, is

Microsoft Word 2010.

Date: April 27, 2015

/s/ Ellen M. Sameth
Ellen M. Sameth
Assistant Attorney General

27
 CERTIFICATE OF SERVICE
I hereby certify that on April 27, 2015, a true and correct copy of the

foregoing document was served via the Court’s ECF system to all counsel of

record:

Mark W. Robinett Via: Electronic Service
BRIM, ARNETT, ROBINETT,
CONNERS & MCCORMICK, P.C.
2525 Wallingwood Drive, Bldg. 14
Austin, Texas 78746
mrobinett@brimarnett.com

/s/ Ellen M. Sameth
Ellen M. Sameth
Assistant Attorney General

28
 CASE NO. 03- 1 3-00370-CV

IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN

STATE BOARD FOR EDUCATOR CERTIFICATION ANd
MICHAEL BERRY, TIIE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
CAPACITY ONLY,
Appellant,

V

ERASMO MONTALVO,
Appellee.

On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause
No. D-1-GN-12-00299I; Before the Honorable Tim Sulak

APPELLANTS' BRIEF

APPENDIX A
 2
har
ó9
(J ,!
CAUSE NO. D-I-GN-12-002991 +J l'''
(J

LT, : ü>
ERASMO MONTALVO, $ IN THE DIS'|RICT COURT OF rlÕ() :{
,u
Plaintffi $
-í ¿:¡ É
--Õ ^4
$ f) t-'
v $ TRAVIS COUNTY, TEXAS :¡ ir_
4

$
THE STATE BOARD FOR $
EDUCATO R CERTIFICATION, $
Defendant, $ 2OOTH JUDICIAL DISTRICT

JUDGMENT

On the 2l't day of March, 2013, the Court heard the merits of the above-

entitled and numbered cause on the claim ofjudicial review brought by Plaintiff,

Erasmo Montalvo, complaining of the administrative order of Defendant, State

Boarcl for Educator Certification, which was subject to substantial evidence review

on the adrninistrative record. Plaintiffs Original Petition included a request for

injunctive relief, heard on April 25,2013, Plaintiff Erasmo Montalvo appeared in

person and by his attorneys of record, Mark Robinett and Corey Tanner, on both

dates; Defendant State Board for Educator Certifrcation appeared in person and by

its attorney of record, Ellen Sameth, Assistant Attorney General, on both dates.

After considering atl briefs, arguments, the adlninistrative record and

applicable rules and law, the Court finds that Defendant's Final Decision and Order

in SOAH Docket No.70l-ll-8468.8C is not supported by substantial evidence and

is arbitrary and capricious,

IT IS THEREFORE ORDERED that Defendant's Final Decision and Order

is REVERSED,

Page I ofZ
 The Court FURTHER FINDS, after considering the evidence adduced and

argument of counsel during the April 25,2013, hearing for injunctive relief, that Plaintiffi

Erasmo Montalvo, is entitled to a permanent injtrnction prohibiting the State Board for

Educator from treating as revoked or revoking the educator certificate of Plaintiff based

on the facts and allegations made the basis of Defendant's complaint in SOAH Docket

No. 701-ll-8468.EC, which injunction is to.remain in effect until, in the case of any

appeal taken by Defendant, a ruling from the appellate cotlrt issues'

IT IS FURTHER ORDERED, pursuant to Rule 2a.2@)(3) of the Texas Rules of

Appellate Procedure, that any appeal taken of this Judgment by Defendant State Board

for Educator Certifrcation will not supersede this Judgment during the pendency of such
*¡ oQo.qoto secure
appeal. Plaintiff is ORDERED to post security in the amount of

the Defendant against any loss or damage caused by the relief granted Plaintiff if an

appellate court determines, on final disposition, that relief was improper.

IT IS FURTHER ORDERED that all taxable costs of court be assessed against the

party who incurred them.

IT IS FURTHER ORDERED that alt remedies not specifically granted are herein

denied.

signed on the 21Ë, * APÉtc 20t3.

ETIMS

Pagc2 ol2
 CASE NO. 03-1 3-00370-CV

IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN

STATE BOARD FOR EDUCATOR CERTIFICATION ANd
MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
CAPAÇITY ONLY,
Appellant,

V

ERASMO MONTALVO,
Appellee.

On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause
No. D-1-GN-12-00299I; Before the Honorable Tim sulak

APPELLANTS' BRIEF

APPENDIX B
 soAH DOCKET NO. XXX-XX-XXXX.8C
TEXAS EDUCÂTION AGENCY, $ BEFORE THE STATE OF'FICE
EDUC^'IOR CERTIFICI\TION AND $
STANDARDS DIVISTON, $
Petitioner $
$
V, $ OF
$
ERASMO MONTALVO,.IR., $
Respondent s ADMINISTRATIVE TIEARJNGS

FINAL DECISION A¡{D ORDER

Came on for consideration on the l0rl'clay of Augusl2012 the above-styled matter.

After proper notice was given, the above-styled case was heard by an Administrative Law Judge
who made ancl hled a Proposal for Decision containing Findings of Fact and Conclusions of
Law. This Proposal for Decision was properly served on all parties, who were givcn an

opport¡nity to file exceptions and rcplies as part ol the administrative record.
The State Board for Educator Certification, ("Board" or "SBEC"), after review and consideration
of the Proposal for l)ecision, as well as the exceptions and replies fìled, if any, adopts the

Findings of Fact Nos. I through 33 and Conclusions of Law Nos. I through 6 in the Proposal tbr

Decision, as if fully set out herein. The Board modifies and adopts Conclusions of Law Nos. 7

and 8, as set out below, and aclds Conclusion of Law 9, All proposed Findings of Fact and
Conclusions of Lnw not specifically adopted herein are hereby denied.

Respondent, a rnale coach, engaged in conduct which exceeds the bottnds of the ¡lroper educator-

stulent relarionship during the spring semester of 200tì by iailing to tbllow district protocol and
s,.-nd V.S. ro the trainer for her ongoing iniury, (Findings ot'Fact ll and la); by rttbbing dowrr

ancl/gr nrassaging V.S., (Finrlings of Fact l8 and 20); by treating V.S.'s initrry himself rvith

stretching, ice baths, antl rvhirlpools, (F-inding of Fact l8); by allolving V.S, to use thc Jttcttzz'iin
thc r:rastcr bedroom ot'his homc 'uvhile no one else was present, (Fírrdings of ["act 22 and 23); and
by cngaging in approximately 480 phone calls rvith V.S, during a .l nronth pcriocl, rvith over 80
trf those crrlls being placed atler l0:00 p.nr. lFinding of l?act 26)'

MONTALVO V. SBEC
0067
Conclusion of Law 7l

Basecl on Findings of Fttct ll, 14, 18,20,22,23 and26, Respondent exceeded the bounds of the
proper educator-student relationship and is a person unworthy to ínstruct or supervise the youth
of this state.

Conclusion of Law 8:

SBEC is authorized to take disciplinary action against Respondent's Texas Educator Certificate'

Conclusion of Law 9:

Respondent's educator certificate should be sanctioned'

'l'hese additions and modifications are permissible pursuant to Texas Government Code g

2001.058(e) and are necessary because the Administrative Law Judge failcd to appropriately
'fexReg 5421'22, Marrs v' lufulthews,270
interpret.and apply SBEC policies and rules. See 34

S.W. 586 (1925), l9 Tex. Admin. Code 5 249,15(b)(2)'

protecting the safety and welfare of Texas schoolchildren and school personnel is a primary

purpose of the SBEC. A certified educator holds a unique position of public trust, and
therefore,

the contluct of an edttcator must be held to the highest standard'

The nroral titness of an educator must be deternlined from an examination of all relevant
conduct

and is not limited to conduct that constitutes a criminal violation or results in a criminal
'Ihe rcsponsibility ancl discretion to make this weighty detern'rination is vested in the
conviction.
SBEC.

ÌVIr. Ivfonralvo held a rrusted position ol authoríty that provided him a ttnic¡ue opportttnity to
expl.it vulnerable tèmale athleres. Eclucator.s nrttst clearly understand the hortndaries of the
any violatiott
educator-stt¡dent relationship that they are trustcd not to cross. The SBEC considers

tif that trust to bc cQnduct that may result in permanent revocalion olln educator's certific¿ìte'

i\llorving a f'emale stutlerrt tt: use the iactrz,'t-i in lhe lnaster batltroo¡n ol'his h0llre rvlrile trtl trlre

()\'ur (ì lt¡ur tnonlh pcriod. itnd
else is l)resL.nt. cirlling a strrrlcn( ovcr {81) tinres in the late evcnirrg

MONTALVO V, SBEC
0068
a male corch giv¡ng a t'emale athlete rubdowns and ice baths, tàiling to follorv district protocol to

send an injured athlete to the trainer is conduct that the SBEC consiclers to cross the bounds of

lhe appropriate student-teacher relationship and is sa¡rctionable conduct.

Respondent's uctions crossed the bounds of an appropriate cducator'student relationship anrl
'Iexas educator celificate,
show that he is not presently worthy to hold a

NOW, THEREFORE, lT IS ORDERED by the Board pursuant to the Texas Education Code
Sections Zl.O3l and 2t.041(b)(7) and the Board's rules promulgated in accordance with these
statutes thar Respondent ERASMO MONTALVO, JR.'S Texas Educator Certifrcate Ntrmber
XXX-XX-66-13 is herebY ?o,. '^rrL¡¡ d
On behalf of the State Board l'or Educator Certification:

lo-
L. CAIN, Ed. DATE

Note: Pttrstrctnt to Board order No. 990705DP' issued under I9 Tex. ldmin' code $
249'7(u),
the Boardþr Edtrcalor Certificttlion may sn order on hehuUof
the presiding oflìcer of Sfate 'sign
møking thetìnul decision on q case'
lhe majority of members

MONTALVO V. SBEC
0069
 CASE NO. 03- 1 3-00370-CV

IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN

STATE BOARD FOR EDUCATOR CERTIFICATION ANd
MICHAEL BERRY, TIü ACTING CHIEF EXECUTIVE OFFICER OF
TI{E STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
CAPACITY ONLY,
Appellant,

v

ERASMO MONTALVO,
Appellee.

On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause
No. D-1-GN-12-002991; Before the Honorable Tim Sulak

APPELLANTS' BRIEF

APPENDIX C
 O- *l v
En
Ã$
_9
o
ciã
el- :È.1 ño ií

CAUSE NO. D-1-cN-12.002991 ()
''r= >\
-rl
ñ¡l =
UD
LJo
= æl
\,¡ =NÐ
ERASMO MONTALVO, IN TTIE DISTRICT COURT o¡O I :)
Plaintiff
$
Ë,s æ, I
U'
$
:Et úõo
$ EF
0)F ó
v TRAVIS COIJNTY, TEXAS I
$ u i E

$
THE STATE BOARD FOR $
EDUCATOR CERTIFICATION AND $
MCHAEL BERRY, THE ACTING $
CHIEF OF THE STATE BOARD FOR $
EDUCATOR CERTIFICATION, IN $
HIS OFFICIAL CAPAC]TY ONLY $ 2OOTH ruDICIAL DISTRICT

AGREEI' ORDER DISMISSING MICHAEL BERRY

on this &uv of HÀ,4CH ,zot3, the Court considered the Agreed
Order Dismissing Míohael Berry as a Defendant in the instant cause, Afrer reviewing the

pleadings and this Agreed Order, jointly fíled by counsel for Plaintiff and Defendants, thc

Court is of the opinion that the Agreed Order Dísmissing Michael Berry should be

granted and that Michael Berry, The Aoting Chief of the State Board for Educator

Certification, In his Off¡cial Capacity Only, should be dismissed from this lawsuit. The

Court finds that Michacl Berry ís not the Chief of the State Board for Educator
Certification, and that the only proper defendant to this lawsuit is the State Board for

Educator Certi ficati on,

IT IS THEREFORE ORDERED that Michael Berry, The Acting Chief of the State

Board for Educator Certification, In his Official Capacity Only ís hereby DISMISSED as

a Defendant with prejudice to re-filing same.

C/N D-l -CN- l2-002991 ; Montalvo v SBEC and Mtchael Berry

Page I o/2
 SIGNED on the &uro¡ M AÈc Èl- .20-É

Tì SU
'.1.
AGREED AS TO FORM AND SUBSTANCE:

EllenM. Sameth Mark W. Robinett
State Bar No. 17555550 state Bæ No. 17083600
OTrICE OF THE AI.TORNEY GENERAL BRIMM, ARNETT, ROBINETT
AovIuISrR¡TIVE LAW DIvISION CONNERS & MCCORMICK, P.C.
P.O. Box 12548 2525 Wallingwood Drive, Bldg. 14
Austin, Texas 78'l ll'2548 Austin, Texas 78746
Telephone; (5 I 2) 936- t 83 I Telephone: (5 12) 328'0048
Faosimiler (512) 320'0167 Facsimile: (5 I 2) 328'48 14
E-mail: Ellen.Sameth@.oag.statc,fx.us E-mail: mrobinett@brimarnett,com
ATTORNEY NOR DETENDANTS ATIOR¡IEV FOR PLAINTIFP

C/N D- I -GN- t 2-00299 I ; Montalvo v SBEC ond Mlchael Berry

Poge 2 ol2
 CASE NO. 03- 1 3-00370-CV

IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTTN

STATE BOARD FOR EDUCATOR CERTIFICATION ANd
MICHAEL BERRY, TIIE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
CAPACITY ONLY,
Appellant,

V

ERASMO MONTALVO,
Appellee.

On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause
- No. D-l-GN- 12-002991; Before the Honorable Tim sulak

APPELLANTS' BRIEF

APPENDIX D
 SOAH DOCKET NO. 701.1 I-8468.8C

TEXÄS EDUCATION AGENCY $ BEFORE THE STATD OFFICD
DDUCATOR CERTIFICATION AND $
SÎANDARDS DIVISION, $
' Petitioner $
$ or
v $
$
ERASMO MONTALVO, JR., $
Respondettt $ ADMINISTRATIVE HEARINGS

TABI,E OF CONTENTS

I. JURISDICTION, NOTICE, AND PROCEDLJRAL IIISTORI þiiârìü¡r¡)rïr¡r,¡f¡i,?,qr'¡r:,.¡.,'?'r, I

A. Undisputed Background Fac1s,..,....... ,..,.,,,,.,....2

B. The AIlegAtiOnSír)t¡Ìii.ì¡ri..iËt ¡r¡tí'.ir1jii¡aaia¡i¿ir¡¡ih;ir.ii..¡¡¡ir'.¡lïi.aiì¡¡i¡ôli¡¡ir.ïr¡är!:a¡ir¡Ì¡¡iìt"ii¡:iris¡r.3

1. Allegations Set X'orth in StafPs Pleacling..... .............'.3
2. Unpled M¿tters..,.., ,,,,,,,,,',,,,,,4

l.
.,
Statements by V.S. (Student 1) 8
V.S.'s Testimony,. .......' 8
^,
b. V.S-ts Statenrent at thc Child Advocacy Ccnter¡,.-.;-; j.ri.,.¿r.1ai,i.i.,4..>¡;it*ó. 14
3. Testimony t¡f Erasmo Mr¡ntalvo ..,,.'..... 16
4. Telephone Records...... ..................... .....,20
5. Testimony of Other
'Witnesses ..""".".'.' 21
a. .Student I's Parents 21
b. Diana Garzn-Louis, LPC......., ....,.24
c. Rio Grande City CISD Teachers nnd Colches.....................-...'.............26
d. Rio Grandc CirJ* IIS Students and Itarents ¡;¡ìjìi¡';..¡'¡,r.1ir.,¿.;iz'¡,'t,,.¿,',,,;.,..34

MONTALVO V. SBEC
0008
 TAtsLE OF CONTENTS I'AGE 2
soAH DOCKET NO. XXX-XX-XXXX.8C

1. \ilitness Credibility """"""' 43

Sexual Impropricty and Assault
45
2, """"""
3, Telling V.S. Not to Go to the Trainer """""""""""' 48

4, Telephoue Cat1s..........' """' 50

5. Student IIse of Mr. Montalvo's Jacuzzi'.'..'.,"""""' -;'*--"""""' 52
6. Sunrmary and Resomnrendttiorr """""'52

MONTALVO V. SBEC
0009
 SOAH DOCKDT NO. 70I-1I-8468.8C

TEXAS EDUCATION ÄGENCY $ BEFORE THD STATE OÍ'FICD
EDUCATOR CERTIIÍICATION ANI) $
STANDARDS DIVISION, $
Petitioner $
$ OF
Vi, s
$
ERASMO IVIONTALVO, JR., $
Respondent $ ADMI NI STRATIVTi, HEARINGS

PROPOSAL FOR DECISION

The staff (SIr¡fÐ of the Texas Education Agency, Educator Certification and Søndard-s
Division (TEA), on behalf of the State Boa¡d for Educator Certification (SBEC or the Board),
brought this {isciplirìary action against Erasmo Montalvo, Jr,, to permanently revoke his Texas
Educator Certificate.r Staff âlleges that Rcspondent engagcd in sexual contact r'vith a fcmale
high school student and otherwise treated her in a neglectful or harmful filanner' The
Actministrative Law Juclge (ALJ) fìrrds tbe eviclence fails to prepottderate ìn suppott of StafPs
allegations. 'fhe AL,J recommends that no sanction be assessed against Mr. Montalvo.

I. JURISDICTION, NOTICE, AND PROCEDUR.AL HISTORY

of notjce or jurisdiction are acldressed in the findings of fact. Issues
General issues
concerning the scope of the case, as determinecl by the pleaclings, are discussed below in
connection witli Staff s allegatiorrs'

The hearing was held January g-12, 2012, before ALJ Shannon Kilgore at the State
Officc of Administrative I'Iearings (SOAIÐ in the'Williarn P. Clements Brrilding,300 West l5rr'
Street, pourth Floor, Austin, Texas. Staff was represented by atforneys Richard J. Ybarra
and

lr4erle Hoffnlan Dover, Mr. Montah,o appeared ancl was represented by attorneys lr4ark Robinett

'lex. Educ. Code $ 21,015.
' TEA is authorizeii fo prot,ide adrninistrative fonctions and scr.liccs to SBEC.

MONTALVO V. SBEC
001 0
soÄH DocKIlT NO, 701-ll-8468.8C PROPOSAL FOR DECISION PAGE,2

and CoÌey Tanner. The recorcl closed on lvlarch 9,2012, with the parties' submission of reply

briefs,'?

II. DISCUSSION

A. Llndisputed Background fiacts

Mr, Montalvo holds a Texas Educator Certificate issued by the Board. In the spring of
2008, Mr.lr4ontalvo was a track and field coach at the Rio Grande City High School
(Rio (hande City I-IS), part of the Rio Grande City Consolidated Independent School District
(Rio Grande City CISD). He was also the physical education coach at a CISD elementary
school,

$tudent I (also r.feo"A to as "V.S."),3 afemale seniorunder the age of 18, was on the
hìgh school tlack team coached by Mr. Montalvo. Dulirrg the 2008 ûack season, she suffered a

ha¡rstri¡g injur.y. Student 1 received a track and field scho)arship to attend college in
Corpus Clristi the following year, She graduated from high school in May 2008 and lefl for
college that August.

Ar some point during the 2008-2009 academic year, V.S. told a c.ounselor at her college
and her family that tvlr. Montalvo had sexually assaulted her in the spring of 2008, In 2009,
Mr.Montalvo was chargecl with trvo counts of secottd-degtee'felony improper relationship
between educator and student. He was indicted in October 2009, and acquitted of both counts
following a jury trial.'l

2 The parties' blieîs included proposed findilgs offact and conclusions of !aw, Proposed 1-rndings offäct
an¿ conr:lusi¡rns of law not spe(:ifirally adopted in this proposal for clecision (PFD) are ovenuled.
3
This srudort was rcl'crcd to i¡ Staft's pfeadings as "Súudent l" ìrul in the henring mostly as "\'.S." The
AL-,| therefo¡e uscs boih rnethods of referring to the sludent.
4 Rcspondcnt's Exhibits l-3.

MONTALVO V. SBEC
001 I
soAH DOCKET NO. XXX-XX-XXXX.8C PROPOSAL FOR DECISION PAGE 3

R. The Allegations

L, Allegations Sct X'orth in StafPs Pleading

Tlre primary altegation of Slaffs Original Petition is that, in the spring of 2008,

lvfr. Montalrro engaged in unwarrted sexual contact with Stude¡lt I ort a number of occasions,
StafPs specific aJlegafiorrs of sekual inrpropriet¡' are as follows:5

a Res¡rondent [nrassaged] Stuclent I's leglhamstring area and would move farther
and farther up her leg as he massaged her. Ultimately, Respondent's touchíng
became inappropriate, moving up into Student I's genital area,

a Stuclent 1, along with other 1'emale students on the girls' track team, would go to
Respondent's home to soali jn his "hot tub," wbich was actually a Jacuzzi-style
batlrtub in the master bedroom of his home. On one of these occasions when
Student I was alone with Respondent in his home, in or arouncl April 2008,
Respondent invited Student I to use his "hot tub." He then asked her to lie on his
bed so thal he could nrassage her leg. At that time, Respondent then proceeded to
engage in oral sex witlr Student L

a Subsequently, Respondent ÈnBaged in sexual telations witb Student I on school
property in the Field House.

a Continuing on through the spring semester of 2008, Respondent would engage in
inappropriate touching of Student l, sometimes occttrring on school propefly,

Staff asserts tbat Mr. Montalvo told V.S. that if she lold the athletic trainer she was

injured, the. trainer would not let her run in the district and regional track meets, Furthet, Staff
alleges that, during the spring of 2008, Mr. Montalvo engaged in approxjrnately 480 phone calls
witb Studeot l, with over B0 of the calls placed after l0:0(l p.m.

lvfr. Montalvo denies all allegations ol'sexual nrisconduct. He denies any assertion that
he told V..S, not to go to the trainer. He admits lhat there were plrone calls with Student l, but

assefls that he does not know the numbel of calls. He' cie¡ic.s tlut the calls were inappropriate,d

r 'l'hc allcgations are taken 6'om Steff's Original Petition at 2"5, as amended through an unopposed oral
rnotion at thc hearing. I 'I'r. at 4-5.
6 Monlalvo's .Answer at 2,
N,lr.

MONTALVO V. SBEC
0012
soAH DOCI(E',t' NO. 701 -lr-8468.8C PROPOSAL FOR DECISION PAGE 4

2. Unpled Matters

In iis opening sratementT and closing zugnrnenls. Staffhas made amunber of additional
assertions, including that Mr. \4ontalvo: gave V,S, rides home; rubbed down and massagcd

female athletes, inclucling V.S,; stretched female athletes in a way that looked inappropriate;
allowed female athletes, including V,S., to take ice baths in the field house without a I'emale
coach present to supervise; was alone with female athletes, including V.S., in a hotel room; gave
female athletes, including V.S., gifts; lailed to refer V.S. for counseliug in conuection v"ith ber
suicidal thoughts; slappecl girls on tleir backsides; and took V.S, to be massaged by a female

coach who rvas not licensed or certified to give mâssages.8 Staff specificalty argues that manyïf
these assertions constitute bases for sanction,e

There are no factual allegations in Staff s pleadinglo to support any of these contentions,
rühile there are mùty factual assertions in Staffls pleading, there is uo mention of rides home,

stretching of female athletes, ice baùs, being alone with female athletes, gifts, handling of an
athlete with suicidal thorrght.s, Slapping of backsides, or a massage by an uncertified female
coach. As to massages, Staff s pleadirig alleges that Respondent massaged V'S. imrnediately
after ¡.er hamstring injury, that a massage on a later date became sexual, and that he told V-S.
that he needed to continue to massage her due to her injury.ll However, there is no allegation
that Mr. Montalvo should not have been engaged in non-sexual massages or rub dow¡rs of female

athletes, as Staff argues.

At hearin-r, Søff orally amended the. factual assertions in its pleading, but did ttot move
to include factual allegations going to arry of the matters describecl above, In his reply brief.
.Mr.lvlontalvo objected to Staft's going beyond the confines of itspleading'¡z The objection is

, ,,(L-.. .;¡,. - t.
,

1 Tr, at 19.
* Peticioner's Clo.sing Argtrtnent a¡' 62o.
e Petitioner's Closing Ârgumcot at 20.
r0 Stafl--s Original Petition, as orally anrerrded at hearing.
rr Stafls Originaì Petition at 3-4,
r2 Respontlent's Post-l'leaLing repìy Brief at 7'

MONTALVO V. SBEC
001 3
 PROPOSAL FOR DECISION PAGE 5
soAH DoCKU',l' No. ?0I -l l-8468.I1C

sustained; those matters zrrenot considered as possibl" ina.p"ndent bases tbr sanction.l3
Holvever, the ALJ does consider the svidence relevant to those lnatters in light of whether it
supports the allegations actually plècl by Søff-

C. Applicable Legal Standards

SBÉC may take disciplinary action against an educator who is unrt'ofthy to inslruct or
supervise lhe youth of this state or u'ho has violaæd olÌe or more provisíons of the
Eduoatots'
youth
Code of Ethics,r{ In this case, Staff conten