ACCEPTED
03-13-00370-CV
6291805
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/30/2015 12:41:14 PM
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 AT AUSTIN
7/30/2015 12:41:14 PM
JEFFREY D. KYLE
Clerk
STATE BOARD FOR EDUCATOR CERTIFICATION,
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 REPLY BRIEF
KEN PAXTON ELLEN M. SAMETH
Attorney General of Texas Assistant Attorney General
State Bar No. 17555550
CHARLES E. ROY OFFICE OF THE TEXAS ATTORNEY GENERAL
First Assistant Attorney General Administrative Law Division
P.O. Box 12548
JAMES E. DAVIS Austin, Texas 78711-2548
Deputy Attorney General for Telephone: (512) 936-1838
Civil Litigation Facsimile: (512) 457-4608
ellen.sameth@texasattorneygeneral.gov
DAVID A. TALBOT, JR. Attorneys for Appellant
Chief, Administrative Law Division
Oral Argument Requested July 30, 2015
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
I. STATEMENT OF FACTS ...................................................................................1
II. ARGUMENT AND AUTHORITIES ..................................................................3
1. Reply to Appellee’s section regarding the Board’s lack of authority to
revoke an educator certificate “in the absence of actual wrongdoing.”
(Appellee’s Br. at 11) ............................................................................3
2. Reply to Appellee’s section that the Board’s reliance on Marrs v.
Matthews is misplaced. (Appellee’s Br. at 11) ....................................4
3. Reply to Appellee’s argument that the Board took Findings of Fact “out
of context” in rendering its Final Decision and Order. (Appellee’s Br.
at 15) ......................................................................................................7
4. Reply to section regarding statements made by Merle Dover, TEA
Deputy Associate Counsel. (Appellee’s Br. at 21–22) ........................8
5. Reply to Montalvo’s section regarding adoption of the Educators’ Code
of Ethics and the lack of statutory cite for “unworthy to instruct.”
(Appellee’s Br. at 24–25) ......................................................................9
6. Reply to Montalvo’s statement that the Findings of Fact do not support
the Board’s changes (Montalvo’s Issue II). ........................................10
a. Why Whalen does not support Montalvo.............................12
7. Reply to Montalvo’s section describing the “unworthy to instruct”
standard as arbitrary and capricious (Montalvo’s Issue III). ..............14
8. Reply to Montalvo’s assertion that the trial court properly issued a
temporary injunction against the Board. (Appellee’s Issue IV). ........15
CONCLUSION ........................................................................................................16
PRAYER ..................................................................................................................16
CERTIFICATE OF COMPLIANCE .......................................................................18
CERTIFICATE OF SERVICE ................................................................................18
ii
INDEX OF AUTHORITIES
Cases
Estancias Dall. Corp. v. Schultz,
500 S.W.2d 217 (Tex. Civ. App.—Beaumont 1973, writ ref’d n.r.e.) ................16
Grayned v. City of Rockford,
408 U.S. 104 (1972) ...........................................................................................5, 6
Heritage on the San Gabriel Homeowners Ass’n v. Tex. Comm’n on Envtl. Quality,
393 S.W.3d 417 (Tex. App.—Austin 2012, pet. denied) .....................................10
Imperial Am. Res. Fund, Inc. v. R.R. Comm’n,
557 S.W.2d 280 (Tex. 1977) ................................................................................14
In re State Bd. for Educator Certification,
452 S.W.3d 802 (Tex. 2014) ................................................................................15
Lewis v. Jacksonville Bldg. & Loan Ass’n,
540 S.W.2d 307 (Tex. 1976) ................................................................................10
Marrs v. Matthews,
270 S.W. 586 ................................................................................................. 4, 5, 9
Nueces Cnty. Drainage & Conservation Dist. No. 2 v. Bevly,
519 S.W.2d 938 (Tex. Civ. App.—Corpus Christi 1975, writ ref’d n.r.e.) .........16
R.R. Comm’n v. Pend Oreille Oil & Gas Co.,
817 S.W.2d 36 (Tex. 1991) ..................................................................................14
Texarkana & Fort Smith Ry. Co. v. Hous. Gas & Fuel Co.,
121 Tex. 594, 51 S.W.2d 284 (1932) ...................................................................10
TGS-NOPEC Geophysical Co. v. Combs,
340 S.W.3d 432 (Tex. 2011) ................................................................................10
iii
Statutes
Tex. Educ. Code
§ 21.031 ..................................................................................................................6
§ 21.041(7)..............................................................................................................6
§ 21.041(8)..............................................................................................................6
Rules
19 Tex. Admin. Code
§ 249.5 ....................................................................................................................6
Tex. R. App. P. 38.1(g) ..............................................................................................2
Other Authorities
31 Tex. Jur. Nuisances § 35 .....................................................................................16
Decision of the Commissioner
Whalen v. Rocksprings Indep. Sch. Dist.,
No. 065-R1B-284, 1985 TX Educ. Agency LEXIS 61........................... 12, 13, 14
iv
CASE NO. 03-13-00370-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
STATE BOARD FOR EDUCATOR CERTIFICATION,
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 REPLY BRIEF
TO THE HONORABLE THIRD COURT OF APPEALS:
COMES NOW Appellant, State Board for Educator Certification (Board),
represented by and through the Office of the Texas Attorney General, and the
undersigned Assistant Attorney General, and files its Appellant’s Reply Brief. In
support hereof, the Board respectfully shows the Court the following:
I. STATEMENT OF FACTS
While Montalvo’s recitation of actual facts is accurate, the Board takes
exception to the way in which those facts are presented as being misleading.
Montalvo imputes conclusions where none have been expressed by either the Board
or the ALJ in their Findings of Fact.
For example, on page 4 of Appellee’s Brief, he expounds on the fact that VS
appears happy and excited in a video with Montalvo. The ALJ gave no credence to
Montalvo’s argument about this seemingly normal behavior by VS, by referring to
the testimony of the Board’s expert witness, a Licensed Professional Counselor with
experience in the field of abuse. 1 AR 16, 33–35. In her analysis of the evidence,
the ALJ point-blank stated that, based on the testimony of the Board’s expert
witness, she gave no weight to VS’s apparently normal behavior around Montalvo,
including her behavior in the video with Montalvo, or her inconsistent statements
about what happened. 1 AR 53.
Another example is on page 5 of Appellee’s Brief, in ¶ 7, and again on page
7, in ¶ 10, where Montalvo concludes that the criminal jury acquitted him because
VS was not credible. However, there is no evidence in the administrative record that
the criminal jury found VS lacking in credibility.
In conclusion, had Montalvo recited the facts as found by the ALJ, instead of
editorializing them and changing their tenor and meaning, the Board would have no
objection. See Tex. R. App. P. 38.1(g).
2
II. ARGUMENT AND AUTHORITIES
1. Reply to Appellee’s section regarding the Board’s lack of authority
to revoke an educator certificate “in the absence of actual
wrongdoing.” (Appellee’s Br. at 11)
Montalvo errs in his argument that the Board lacked authority to sanction him
“in the absence of actual wrongdoing.” Appellee’s Br. at 11. “Actual wrongdoing”
is not necessarily the equivalent of a Code of Ethics violation or one specific,
quantifiable act. What caused the Board to take note of what Montalvo had done
was not just one instance of poor judgment and the subsequent conduct resulting
from that judgment, but instead multiple instances of poor judgment and the resultant
conduct.
While, for example, there is no bright line rule regarding phone calls between
educators and students, in this case it is not unreasonable for the Board to find that
480 calls—even taking into account that a number of them may have been “dropped”
calls—is inappropriate regardless of content. Nor is it unreasonable for the Board
to find that allowing students into your home to use the Jacuzzi in your master
bathroom—especially in allowing one female student, alone, into your master
bathroom Jacuzzi—is crossing the boundary of an appropriate educator-student
relationship.
3
In concluding that Montalvo is unworthy to instruct, the Board looked at the
totality of Montalvo’s judgment calls and actions, and concluded that he had crossed
the line and lacks the ability to make the appropriate judgments that educators must
make in order to be role models for students.
It should be noted that the Board made no attempt to sanction Montalvo for
one call, or two calls, or any number of calls, or after Montalvo had students in his
home one time only. Nor did the Board claim that just one instance of poor judgment
put Montalvo “over the line” into inappropriate conduct as an educator. The Board
instead cited all of these instances as evidence of Montalvo’s deficient judgment and
complained not only of Code of Ethics violations when it originally filed its
administrative complaint, but also pled that he is unworthy to instruct.
2. Reply to Appellee’s section that the Board’s reliance on Marrs v.
Matthews is misplaced. (Appellee’s Br. at 11)
Montalvo’s argument that the Board’s reliance on the Marrs 1 case is
misplaced is short-sighted. The Marrs case, relying on the “unworthy to instruct”
language, involves an educator involved in a scheme to fraudulently issue educator
certificates. While it is true that the Marrs Court did not find the phrase “unworthy
to instruct” to be vague “as to the conduct in that case” (Appellee’s Br. at 12), the
opinion does not imply that the phrase is limited to that particular set of
1
Marrs v. Matthews, 270 S.W. 586 (Tex. Civ. App—Texarkana 1925, writ ref’d).
4
circumstances or others like it. On the contrary, the opinion does justice to the phrase
“unworthy to instruct” by giving an expansive explanation of not only what it means,
but why the phrase cannot be specifically defined. Id. at 588.
The Board is certainly qualified to determine when the line defining a proper
educator-student relationship is crossed, and sanction accordingly. In fact, educators
themselves are capable of determining when they have crossed that boundary. It is
clearly worrisome to the Board that Montalvo did not recognize that his conduct
(having students use the Jacuzzi in his master bathroom; engaging in tens, if not
hundreds, of phone calls with one particular student) shows major lapses in his
judgment as an educator.
The fact that the phrase “unworthy to instruct” has no black and white
definition does not indicate lack of accountability and an ability to arbitrarily
sanction. See Appellee’s Br. at 13. The need for more concrete notice of a violation
is much stronger in criminal cases than in non-criminal cases such as this one.
Montalvo cites to the Grayned 2 case for support. However, while Grayned does
expressly state that it is a “basic principle of due process that an enactment is void
for vagueness if its prohibitions are not clearly defined,” Grayned deals with the
potential for a penal sanction. Id. at 108. Here, however, there is no penal sanction
involved. While the loss of a professional certification is serious, it is not the sort of
2
Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).
5
seriousness that involves the potential to be sent to jail or prison, or have a conviction
on one’s criminal record—as in Grayned. And the Grayned opinion goes on to state
that “[c]ondemned to the use of words, we can never expect mathematical certainty
from our language.” Id. at 110. Further, the Court explained that,
[d]esigned, according to its preamble, ‘for the protection
of Schools,’ the ordinance forbids deliberately noisy or
diversionary activity that disrupts or is about to disrupt
normal school activities. It forbids this willful activity at
fixed times—when school is in session—and at a
sufficiently fixed place—‘adjacent’ to the school. Were
we left with just the words of the ordinance, we might be
troubled by the imprecision of the phrase ‘tends to
disturb.’
Id. at 110–11. This is an important point and can be directly related to the “unworthy
to instruct” language in the Board’s rules.
Various statutes, rules, and the Board’s Disciplinary Policy and Mission
Statement (adopted February 6, 2009) reference the fact that the conduct of
educators is to be regulated by the Board. See Tex. Educ. Code §§ 21.031, .041(7),
.041(8). The Board also has a duty to protect not only schoolchildren but educators.
19 Tex. Admin. Code § 249.5; SBEC Disciplinary Policy and Mission Statement.
See Apps. B and C, respectively. When taken together, the rules, statutes and
Disciplinary Policy put the “unworthy to instruct” language in context. It is worth
repeating that Texas case law is replete with numerous phrases that are similar to
6
“unworthy to instruct” in that they defy exact definition yet pass constitutional
muster. See Appellant’s Br. at 20–21.
3. Reply to Appellee’s argument that the Board took Findings of Fact
“out of context” in rendering its Final Decision and Order.
(Appellee’s Br. at 15)
No Findings were taken out of context by the Board because all Findings
relied on by the Board involved Montalvo’s conduct. 1 AR 61-62, or see App. D
(ALJ’s Findings of Fact and Conclusions of Law). In fact, it is Montalvo who took
the Findings out of context. The Board did not revoke Montalvo’s certificate
because, for example, “[d]istrict protocol required that injured students be sent to the
trainer,” or because, “[f]ollowing her injury, VS underwent stretching, rub downs,
ice baths, and whirlpool use under Mr. Montalvo’s direction,” or because of any of
the other Findings of Fact taken individually. See 1 AR 62, 63 (FOF 11, 18), or see
App. D. The Board’s Order expressly states that it is based on seven Findings of
Fact that, when taken together, indicate that Montalvo is unworthy to instruct. See
1 AR 68– 69, or see App. A (Board’s Final Decision and Order).
Common sense dictates that a male educator inviting a female student (or any
student) to his home to use the master bath Jacuzzi has engaged in conduct no
educator should be engaging in, regardless of whether or not any misconduct
occurred. The same goes for excessive phone calls between an educator and a
student, as here. The fact that the only people who know what the content of those
7
calls were and that they both testified that the calls were not in the furtherance of a
romantic relationship does not mean that the sheer number of calls could not be taken
into account by the Board. But the Board did not rely on just those Findings.
Instead, it relied on the totality of Findings regarding Montalvo’s decisions and
conduct in reaching its conclusion.
The Board’s Final Decision and Order does not stand for the proposition that
if an educator gives students rubdowns, or assists them in stretching, or engages in
any number of other individual acts as found to have been committed by Montalvo
that they are in danger of losing their certificate. In Montalvo’s case, it was all of
his decisions that, when taken together, are indicative of an educator who lacks
judgment, cannot be a role model for students, and is unworthy to instruct.
4. Reply to section regarding statements made by Merle Dover, TEA
Deputy Associate Counsel. (Appellee’s Br. at 21–22)
Montalvo’s quote, attributed to Merle Dover (Appellee’s Br. at 21–22)
speaking at a school law seminar in 2011, is taken out of context. As Ms. Dover
explained while testifying at the hearing for Montalvo’s request for a temporary
restraining order, her remarks regarding phone calls were not part of any prepared
speech but were in response to a hypothetical question from an audience member to
which she was responding. See 2 RR 53:18–55:6. And, as with all other findings of
fact that Montalvo brings up in his Brief, the phone calls must be seen as part of the
8
broader picture as opposed to Montalvo’s narrowly painted picture that phone calls
alone do not make an educator unworthy to instruct.
5. Reply to Montalvo’s section regarding adoption of the Educators’
Code of Ethics and the lack of statutory cite for “unworthy to
instruct.” (Appellee’s Br. at 24–25)
It is merely Montalvo’s opinion that the term “unworthy to instruct” should
be limited to “egregious cases such as fraudulently issuing teaching certificates,” as
in the Marrs case. Appellee’s Br. at 25. The fact that the Board now has in place a
comprehensive Code of Ethics which did not exist at the time that the “unworthy to
instruct” language appeared in statute in no way negates the need for, or legitimacy
of, language to sanction educators when the Board finds that an educator has crossed
the boundary of a proper educator-student relationship despite the lack of a Code of
Ethics violation. Montalvo’s judgments and actions are indicative of that necessity.
For example, the fact that no violation was found in terms of solicitation of a
romantic relationship between Montalvo and VS does not indicate that an excessive
number of calls between an educator and a student is “okay.” Further, the fact that
there was no finding of anything improper going on during students’ visits to
Montalvo’s master bath Jacuzzi, and hence no Code of Ethics violation, does not
mean that such behavior is also “okay.”
Montalvo is correct that the term “unworthy to instruct” no longer appears in
the Texas Education Code, having been repealed when the Board was formed by the
9
legislature in 1995. The term does, however, exist in the Board’s rules. The Board’s
rules have the force and effect of law. Lewis v. Jacksonville Bldg. & Loan Ass’n,
540 S.W.2d 307, 310 (Tex. 1976) (“Valid rules and regulations promulgated by an
administrative agency acting within its statutory authority have the force and effect
of legislation.”) (citing Texarkana & Fort Smith Ry. Co. v. Hous. Gas & Fuel Co.,
121 Tex. 594, 51 S.W.2d 284 (1932)).
In conclusion, it is absolutely within the Board’s discretion to determine that
Montalvo’s conduct crossed the line into “inappropriate” regardless of whether or
not a specific ethical standard had been violated, and regardless of whether or not
the term “unworthy to instruct” appears in statute. In other words, the Board has the
authority to make policy determinations and the courts give deference to those
determinations, as long as they are reasonable. See Heritage on the San Gabriel
Homeowners Ass’n v. Tex. Comm’n on Envtl. Quality, 393 S.W.3d 417, 424 (Tex.
App.—Austin 2012, pet. denied) (citing TGS-NOPEC Geophysical Co. v. Combs,
340 S.W.3d 432, 438 (Tex. 2011)).
6. Reply to Montalvo’s statement that the Findings of Fact do not
support the Board’s changes (Montalvo’s Issue II).
One of Montalvo’s complaints is that the Board revoked his certificate for
“poor judgment,” when “poor judgment” is not a standard for maintaining one’s
certificate. Appellee’s Br. at 33. Montalvo’s diatribe against the use of “poor
judgment” as a basis for revocation is misplaced. Significantly, the Board’s Final
10
Decision and Order does not reference Montalvo’s “poor judgment” other than by
inference. Instead, the Order itself clearly explains the rationale on which it is based,
which is:
• Protecting the safety and welfare of Texas schoolchildren
and personnel is a primary purpose of the SBEC.
• The moral fitness of an educator must be determined from
an examination of all relevant conduct and is not limited
to conduct that constitutes a criminal violation . . . .
• Allowing a female student to use the [J]acuzzi in the
master bathroom of his home while no one else is present,
calling a student over 480 times in the late evening over a
four month period, and a male coach giving a female
athlete rubdowns and ice baths, failing to follow district
protocol to send an injured athlete to the trainer is conduct
that the SBEC considers to cross the bounds of the
appropriate student-teacher relationship and is
sanctionable conduct.
• Respondent’s actions crossed the bounds of an appropriate
educator-student relationship and show that he is not
presently worthy to hold a Texas educator certificate.
I AR 68–69 (Final Decision and Order), or see App. A. It is indeed Montalvo’s poor
judgment which led him to engage in inappropriate conduct with his students in
general, and VS in particular. And, according to the Board’s Final Order, it is
Montalvo’s conduct that is responsible for his certificate revocation. I AR 69, or see
App. A.
11
Nor, as Montalvo also argues, has the Board revoked his certificate because
of 480 phone calls, or because of his allowing a female student to use the Jacuzzi in
his master bath at home, or because of any other individual Finding of Fact as found
by the ALJ and adopted by the Board. Rather, as the Board has consistently
explained, and as its Final Decision and Order details, it is because the totality of
Montalvo’s judgments and subsequent actions have crossed the boundary into
inappropriate conduct. For that reason, passages cited by Montalvo from the
Whalen 3 case are inapplicable. Appellee’s Br. at 34, 35.
a. Why Whalen does not support Montalvo.
Whalen involved a case where a teacher violated express instructions in
presenting material in a sex education class over the course of several class periods
spanning two days. The Commissioner, although hesitant to affirm the Board of
Trustees’ decision to terminate Whalen’s contract after the first year of a two year
contract, did so. His hesitancy was because, as the passage cited by Montalvo in his
Brief (Appellee’s Br. at 34) says, “one instance of exercising poor judgment will not
necessarily support an action of termination of employment.” Whalen, 1985 TX
Educ. Agency LEXIS 61, at *17.
3
Whalen v. Rocksprings Indep. Sch. Dist., No. 065-R1B-284, 1985 TX Educ. Agency LEXIS 61,
at *17.
12
But Montalvo failed to include a later passage from the Whalen Decision
which is applicable to this case:
Nevertheless, despite these reservations, when a teacher
engages in activity which is potentially harmful to her
students’ physical or emotional well being, a school
district must be allowed to terminate that teacher’s
employment rather than risk the possibility that the teacher
might engage in further similar conduct.
Id. at *18 (emphasis added). And, following in that same paragraph:
In the present case, Petitioner demonstrated that the
Board’s decision was questionable. She did not
demonstrate, however, that it was unreasonable. The
decision of the Board should, therefore, be affirmed.
Id. at 19 (emphasis added). And, while the Whalen Decision also states that the harm
must be significant (Id. at *18), in the present case we have a male coach inviting a
female student, alone, to his home to use the Jacuzzi in his master bathroom;
engaging in hundreds of phone calls, including 80 calls after 10:00 p.m., no matter
how brief they may be; treating her injury himself with ice baths and rubdowns; and
generally engaging in questionable behavior. All of this is evidenced by the Findings
of Fact in the Board’s Final Decision and Order, adopted verbatim from the ALJ’s
Proposal for Decision. I AR 67–69, or see App. A. Not only is the potential for harm
present, as noted in the Whalen decision, but, in considering all that has transpired
for both VS and Montalvo as a result of all of these actions, significant harm can
certainly be considered to have occurred.
13
While Whalen involves the appeal of a Decision of the Commissioner of
Education rather than the appeal of a state Board decision, the rationale of the
Commissioner’s Decision certainly applies. In a substantial evidence appeal, the
standard is not whether the court agrees with the Board’s decision, or even if the
court believes it is a wrong decision. Rather, the court must affirm the Board’s Final
Decision and Order if it is reasonable. Imperial Am. Res. Fund, Inc. v. R.R. Comm’n,
557 S.W.2d 280, 286 (Tex. 1977); R.R. Comm’n v. Pend Oreille Oil & Gas Co., 817
S.W.2d 36, 41 (Tex. 1991) (“At its core, the substantial evidence rule is a
reasonableness test or a rational basis test.”). Because the Board’s position is
reasonable, the trial court should have affirmed its Final Decision and Order.
7. Reply to Montalvo’s section describing the “unworthy to instruct”
standard as arbitrary and capricious (Montalvo’s Issue III).
The Board has briefed this issue in detail in its previously-filed Appellant’s
Brief. However, it is worth emphasizing that Montalvo’s opinion as to when the
standard applies (“when involving extreme and egregious conduct that is not now
articulated in the Code of Ethics”4) is just that, his opinion. While the Code of Ethics
is a comprehensive listing of ethical standards to be adhered to by educators, it
cannot possibly be all-encompassing since it refers to human behavior, which,
potentially, entails an infinite number of possibilities. Again, it is not unreasonable
4
Appellee’s Br. at 37.
14
for the Board to find that allowing a female student into your master bath Jacuzzi is
not appropriate behavior for a teacher. And that is just one of Montalvo’s behaviors,
based on his judgment or lack thereof, to which the Board took exception in its Final
Decision and Order. All Findings were adopted verbatim from the Proposal for
Decision, with no objection by Montalvo.
8. Reply to Montalvo’s assertion that the trial court properly issued a
temporary injunction against the Board. (Appellee’s Issue IV).
The Court did not, in fact, balance the equities when issuing the temporary
injunction against the Board, as Justice Guzman opined in her concurring opinion.
In re State Bd. for Educator Certification, 452 S.W.3d 802, 809 (Tex. 2014)
(Guzman, J., concurring). The Findings of Fact and Conclusions of Law filed by the
trial court following the hearing regarding injunctive relief, while mentioning that
the “competing equities favor granting the injunction,” make no mention of facts
other than the ones affecting Montalvo. RR 5 8–10, or see App. E. In other words,
the Findings of Fact are conclusory only. The harm or potential harm to
schoolchildren faced with an educator displaying Montalvo’s lack of judgment, is
not mentioned, let alone discussed. Montalvo’s own briefing only mentions the
testimony concerning Montalvo’s experience as an educator, the fact that he was
placed on leave with pay after he was indicted, that he was reinstated after he was
5
Reporter’s Record
15
acquitted, nothing more. Appellee’s Br. at 40. “Balancing” requires more than just
looking at one side of the equation, and yet, that is all that was done in this case.
Estancias Dall. Corp. v. Schultz, 500 S.W.2d 217, 221 (Tex. Civ. App.—Beaumont
1973, writ ref’d n.r.e.) (quoting 31 Tex. Jur. Nuisances § 35) (“According to the
doctrine of ‘comparative injury’ or ‘balancing of equities’ the court will consider the
injury which may result to the defendant and the public by granting the injunction
as well as the injury to be sustained by the complainant if the writ be denied.”)
(emphasis added); Nueces Cnty. Drainage & Conservation Dist. No. 2 v. Bevly, 519
S.W.2d 938, 948 (Tex. Civ. App.—Corpus Christi 1975, writ ref’d n.r.e.).
CONCLUSION
The Board’s actions were reasonable: in adopting all Findings of Fact
verbatim, the Board concluded that Montalvo is unworthy to instruct. Under the
substantial evidence standard, the Court must affirm the Board’s Final Decision and
Order as there is substantial evidence in the record to support it.
PRAYER
For the reasons stated above and in its initial Appellant’s Brief, Appellant
State Board for Educator Certification respectfully prays that this Court reverse the
trial court’s Final Judgment and affirm the Board’s Final Decision and Order
permanently revoking Montalvo’s educator certificate.
16
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
/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
ellen.sameth@texasattorneygeneral.gov
Attorneys for Appellant
State Board for Educator Certification
17
CERTIFICATE OF COMPLIANCE
I certify that this Appellant’s Reply Brief submitted complies with Tex. R.
App. P. 9 and the word count of this document is 3,700. The word processing
software used to prepare this filing, and calculate the word count of the document,
is Microsoft Word 2010.
Date: July 30, 2015
/s/ Ellen M. Sameth
Ellen M. Sameth
Assistant Attorney General
CERTIFICATE OF SERVICE
I hereby certify that on July 30, 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
18
CASE NO. 03-13-00370-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
STATE BOARD FOR EDUCATOR CERTIFICATION,
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 REPLY BRIEF
APPENDIX
A. FINAL DECISION AND ORDER
B. 19 TEX. ADMIN. CODE § 249.5
C. SBEC DISCIPLINARY POLICY AND MISSION STATEMENT
D. ALJ'S FINDINGS OF FACT AND CONCLUSIONS OF LAW
E. TRIAL COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW
CASE NO. 03-13-00370-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
STATE BOARD FOR EDUCATOR CERTIFICATION,
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
APPELLANT'S REPLY BRIEF
APPEI{DIX A
soAH DOCKET NO. 701-l l-8468.EC
TEXAS EDUCATION ÀGENCY, $ BEFORE THE STATE OF'FICE
EDUCTVIOR CERTIFICATION ANI) $
STANDARDS DMSION, $
Petitioner $
$
V $ OF
$
ERASMO MONTALVO, JR., $
Respondent $ ADMINISTRATIVE TIEARINGS
FINAL DECISTON AND ORDER
Came on for consideration on the l0tltState v. Erasmo Montalvo
Combined Opinion