State v. Erasmo Montalvo

Opinion

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,

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

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).

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

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.

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.

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

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,

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

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,

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

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,

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

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

3,6,t7 by soliciti¡g or engaging in sexual conduct or a romantic relationship with a student.rB

t3 The ALJ has co¡sicìered ttre possibility that these nlâtters 1ry€re tried by consent. See-Tex,.R'. Civ' P' 67 the (,When iszues not raised by orintplied , they sball be treated ìr, uti ."rp."o as be if t¡ey hãd Theywere tement' attd evidence ,rlruuna ïo them ,na, qdmitted r, evidence was also potentially irìru*r as background and context for ivfr, Montatvo's allcgedly sexual conduct with V,S. Furthermore, to mattcrs as independenr bases for sanction, due to the fact Mr, Monøluo ob¡ã.t.d in his closing argument these colnsettr is a nar:orv doctrine, applicable in exceptional cases, and where 'such an lhut gruy *ere nó¡ pled. Trial Uy ' raise ob.iectiorr is LLC v. T&IvI Sales & Envtl' Sys" ì76 S.W.3d 595, 605 ining party does not object to teslirnony but ã'n rlre irsuó ble ground, 'be cannot be rcgardetl as impliedly con.sen internal citations omitted)' In this case, therefore, tlle matters were not tried by consent. to lg'fex. Admin. Code $ 24g.15þ)e), (3). The relevant provísions of the conbolling rules have not changed in substance sjnce lhe tinle of the events at issue in thjs case' r' l9'I'ex. Admirr, Code $ 24?'2(bX3XB) lnow $ 247'2(3XB)]'

'u l9 T"*. Admin. Code $ 247.2(bXlXÐ lnow $ 247'2(3XE)]' '? l9 Tex, Aclmin. Çodc $ 24?.2(bX3)(F) luorv S 247'2(3XF)]' tt staff alteges, too, that Mr lvfontalvo violated Codo of Ethics Standard 1.7, 19 Tex' Admin' Code 247.2(lXG)], by failing to rvritten local school boa¡d $ 24?.2(bXlXG) [now $ policies, and other appticable state and federal [aws' ily in its pleading lvhat allegedly violated. written policies or laws, aside from olhet'provisions Staff flirther. alleges Mr. Montalvo "has comrnitted an act describcd in 19 f'r\C ['l'ex. Admin, Codel to healtl, sateîy, ot' rvelläre of a sludcnt or rninor, porent of a conduct tlrit inclicates a risk the (h)) establishes ernplo¡ree or proltssional colleague." Tle cited rule (which is now subseclion but irnposesio obìigalions o0 teachers, callnol be violaled by a teacher, and EA,s investigaiions, is for sanction ofa leacher.

MONTALVO V. SBEC 0014 soAH DOCKET NO. 701-11"8468.8C PROPOSAL FOR DECISION PAGE 6

The forms of disciplinary action SBEC may take against an eclucator include placing restrictions or condìtions on an educator's certificate, issuing an ins

leprimand, suspending a certificate, ìssuirrg a probated suspension, and revoking a ccrtilìcats.re SBEC and the ALJ are required to take the following factors into consideration in seeking,

proposing, or makìng a decision in enforcemsnt actions:

r Tlre serior¡sness of tbe violation; . Whether tl¡e misconduct lvas premeditated or intentional; ¡ Attcmpted concealment ofmisconduct; r Prior misconduct; . Whether the sanction will deter future violations; and . A¡y other relevant circumstances or facts,zo

If Staff proves that an educator engaged iu or solicited sexual contact or a romantic

relationship with a student (tlrereby violating Standarcl 3,6 of the Eclucators' Code of Bthics), the 2| educator' s certifìcate mus t' be permanently revoked.

D. Sumrnary of the Evidence

1. Overvierv

Statïotlèred the testimony of the follorving witnessesi,

a Student l; o Yolanda Sanchez, Student 1's mother; a Salome Sanchez, Student I's father; a Rey Ramirez, the Rio Graude Citi CISD Athletic Director; a Esther Guera Pena, a formcr coach rvith thc Rio Glande City CISD; a James Meguire, the head athletic trainer at the Rio Grande City IIS; a lvlr. Montalvo, called as alr adverse wittress;

re I I Tex, ,{dmin, Code $ 249.1 5(a). -'a lg Tex. Adrnir. Code $ 249.1 7(c). 2' l9 Tex. Admin. Code $ 2a9.17(dXl).

MONTALVO V. SBEC 001 5 soAH DOCK-ET NO. 701-l1"8468.8C PROPOSAL FOR DECISTON I,ACE 7

t Diana Gzuza-Louis, a ljcensed professional counselo¡ who provided experl teslimony about sexual abuse; a Ilicarclo an employee of the Rio Crande City CISD wþo worked Altahil with Mr. Montalvo during the time period in question; atrd f: Roel Gonzalez, the superintendent of schools fbr the Rio Grande City CISD.

St¿ff s other evidence includes, arnong other things, telephone recorcls of Mr. Montalvo,22 a DVD and transcript of an interview of V.S. at the Child Advocacy Center,23

and copies of greeting cards with handwrittcn notes from Mr. lvlontalvo to V,S,2a

Mr, Montalvo testified on his own behalf and offered the testimony of the following other witnessesl

a K.r\., a student athlete who rvas coached by Mr. Montalvo and was a teammate of Student l; a Dina Pena, a parent whose daughters were student athletes coached by Mr. Montalvo and who ì¡/ere teâmmates of Student l;

o Lincla Lu, an assistant track coach at Rio Grande City I{S at the time of the events in question in this case;

a E.P,, a student athlete tvho was coached by Mr' Montalvo and was a teamrnate of Student l:

4.G., a stuclent athlete who rvas coached by Mr. Montalvo and was a teammate of Student [;

a Ricardo Saenz, the principal of North Grammar Elementilty School in the Rio Gra¡rde City CISD, wlrere Mr. lvfonlalvo also coaches;

a Baldemar Garza. an attonrelr who advised Mr, Montalvo in his criminal case a¡d who is the father of a young male track athlete who gradnated from Rio Grande City I-IS ancl was trailed by lv{r. Montalvo;

22 Sra|| s Lixhibirs 2,2A, and i, 2t Staffs Exhibi¡s 4 and 44. 2a sraft's Exhibit 5,

MONTALVO V. SBEC 001 6 PROPOSAL FOR DECISION PAGE 8 soAtl DocI(ET NO. 701-tl-8468.8C

I(.T., a student athlete who was coached by Mr. Montalvo and tva.s a teammate of Student l;

o Ofelia Guerra, an elementary school teacher with the Rio Grirnde City CISD who has worked wjth Mr, Montalvo;

a Catherine Rubio, who is employed at North Grammar Elementary School and knows Mr. Montalvo;

o K.S., who is the daughter of Ricardo Saenz and rvho is presently a stuclent track athlete at Rio Grande City HS coached by Mr' Montalvo; and

o 4.8,, a student track athlete at Rio Grande City HS prescntly coached by Mr. Montalvo.

Mr. Montalvo's other evidence includes, among othet things, tecords reflecting lús criminal acquittal and his telephone calls, multiple rvritten statements from witnesses in this cas",25 a televisíon interview of Mr. Montalvo and V,S., and police records concerning the alleged sexr¡al assault.

2, Statements by V.S. (Student 1)

¿r. V.S.'s TestinronY...

Student I graduated from Rio Grande City HS in the spring of 2008. She went on to

college at Corpus Christi A & M. She is plesently still in school, is matried, and has oue cbild'

V,S. testihed that she first met Mr, Montalvo when she was in the eighth grade and she parlicipated in a surn.me¡ track program he coached. Begiming as a freslrman, slte ran track throughout high school, and lvlr, Montalvo wa.s her coach. V,S.'s goals were to participate in the

Olympics ancl obtain a college scholarship.2ó

When she first started running, V.S. said, she had been diagnosed with a heart mtìlmtlr ancl leaking heart valve. Her doctor told her not to run because, if her heart began to pump very

?5 ftc.-spondcnt's Exhibit 16, a writtcn stâtsmont of Erika Prart, was inadvertently admitted at the hearing. h is hcrcby exclnded based on a proper objection by Stnft 16 'fr. at 3 l -39

MONTALVO V. SBEC 0017 soAH DOCKET NO. 70r-11-8468.8C PROPO.SÄL FOR DECISIOÌ\ PAGE 9

fast, she could have seizu'es. She stated that lvlr, Montah,o aclvisecl V.S,'s pat'ents that she

s¡ould not run track. However, V.S. testified, "l tolcl them if I was going to clie, that I would die *i rvould rather die at the track than anywheie else, so I wæ going to conlinue running regardless." She said that her condition has improved.2T

Accordipg to V.S,, in her junior year, she progressed 10 the district and then the regional

competitions.2s That year only one student from Rio Grande City HS went to the state competition, A,G. V.S. stated that she and trvo other girls traveled to Austin rvith A'G,, at Ml, Montalvo's invitation, to ot'fet suppott during the state meet, While in Austin, said V'S', Mr. tvlontalvo asked each girl to come into his hotel room fbr about 20 minutes, during which time he gave each girt jewelry made by one of his re'latives'2e

In her senior year, Student 1 said, she was trying to gain a college scholarslrip through her

parlicipation in track. The track season began in February and culminated in the state rúeet in May, and t¡e college scouts rvere watching seniors rryho r,vere. competing' V,'S. and her parents

looked to Mr. Montalvo to help them with the scholarship application process' Mr' Montalvo communicated with V,S,'s f'amily frequently. No one in'V'S,'s family had ever gone to college,3o

On March t of V,S.'s senior year, ala meet in Oo*q \¡,S. suflèred a hamstring injury.

A college scout $'as present to watoh her cornpele, According to V'S., the injury rnade it clifficult for her to walk, She testified that lr4r. lvfontah,o went with her to the school bus, where he massagecl her leg in a:r effori to get her to a point at u'llich she could compete. Coach Lu nrassaged her, too. V.S, testilied that nothirrg inappropriate happened at that time. I)espite the

rub downs, she was unabìe to conrpete. She also stated that the college scout talked to her that day ancloffered her a scholarship, despite her iujury. She ar.:oeptccl the scholarship.3r

2'- 'l't. at33-34. 28 'fr. at 41. 2" Tr. at 42-44. )o Tr. at 45-47. t' Tr, at 47-50,138.

MONTALVO V. SBEC 001 I PROPOSAL FOR DECISION PAGE IO soAH DOCKET NO, 701-t l-84ó8'EC

refer her to a student rvenr on to say that, following her injury. Mr, lr4ontalvo did not I compeling at the distict meet' arid that trainer, telling her that lhe trainer would prevent her from jeopal'dy' She said she did rrot see a doctor' her failure to cotnpete might put her scholarstrip in for shots to treat the iojuty' V'S' began but her mother look her to Mexjco once or twice a rveek using massages, a heating pad, and ice baths for her injury, which initially prevenÈetl her from

running, workirrg oÙt like the other girls, of eveD picking up her leg' She søted that

M¡. Morrtalvo would perform massâges himself, in a field house that had mats and air conclitioning,l2 :,

According to V,S., the massages became sexual' she slated that Mr' Montalvo would dnkle to her back, incìuding her buttocks' massage her leg (al1d soDretimes lroth legs) fronr t]re said the massages would occur before She testified that he would also rub her vagina. She happenecl in various practice, after practice, ancl a few times befote school, and that they sþe stated' lMhen he woulcl start locatious. The offensive touching did not happen all the time, him to stop, but he would say that he needed to touch her in an inappropriate way, she would telt to massage the eutire area, and any straying vvas inadvertenl' Nonetheless, she sAid' he kept to get better so that doing she stated that she kept allorving the massages because she wanted it. rominding her of that her scholarshìp would not be in jeopardy, and Mt'. Montalvo lcept V.S. missed the next possibility, She could not afford to go to college without a scholarship''3 meet in early April'3a three meets clue to her injury, next cornpeti$g at the district

At v's., Mr. Montalvo offered some point after the massages had become sexual, said

her some rnoney, She testified that, at the tinre, her parents were sÍuggli¡g financíally' just been Mr, Montalvo, of this fact, told her that he had 52,000 with him, because he had awar.e plovide the money "if you do paid, a:rd he oould give it to her. V.S. stated he tolcl her he could fol'me." She saicl that she {eclinecl, saying her parents would be fine' V'S' inferrcd .somcthing the child Advocacy center that he that he was conditionìng the offer of money on sex, and told

V'S' received, or rvho administered lhem' ='' Tr. ar 5l-54,62,140, lt is unclear exactly what kind of shots ltere are rplèrences in lhc cviclcncc ttl vitamin lf-12 shots' rr Tr. at 54-59,64,87-

" Tr. ot 60; Respondent's Exhibit 22'

MONTALVO V. SBEC 001 9 soArI Docr(nT No, 70t-Il.-8468,8C PROPOSAL }'OR DECISION PAGE II

hacl ot1ered money for sex. V,S. acknowledged that, in her testimony in lvft' Montalvo's just suck criminal trial, she testified that he had told her, "We don't have to have sex. You can oil it."35

V.S. asserls that, in about Aplil, Mr, Montalvo raped her twice. Tho first time, slte said, was ìl the field houqe. She testified that lhe two occuffences were within clays of each odler, some time prior to lhe regional meet (vrhich was in late April). One clay afte'r practice, Student I

stated, when everyone else bacl lefl, Mr, Montalvo gave her a massage on a ¡nat in the fielcl hor¡se, In the course of the massage, she said, he moved her "bikers" shorls to the side and placed his penis inside her vagina. V.S. stated that she had allorvecl him to give her a massâge because she wanted to get better an{ compete, and because of the scholarship'36

The second alleged ocsurrence was at Mr. lvfontalvo's home. During her senior year, V.S. statecl, she used the ho[ tub or Jacuzzi in lvft. Montalvo's bathroom at his home th,ree times' She said that track girls did not use the hot tubs at the school, and they went to Mr' Montalvo's house because of the $,ater pressure. On the fust occasion, she went with three othef girls' This

was, V.S. said, the only time she saw Mr. Montalvo's wife present, The second time, one other girl accornpaniecl V.S. The batlt accommodated two people, and the girls each used the bath for 20 minutes. They wore sports bras or bathing suit tops, and "bikers" shorts. V.S. said that, on the third occasion, she lvent alone.37

When she got out of the Jacuzzi, V.S. testified, Mr. lvfontalvo asked her to take otïhe¡ bíkers so that he could give her a massage. She wore a bathing suit rmderneath. He put a torvel on the bed, zurcl s¡e lay {owl on it on her belly, According to V.S., he undid her bathiag suit af the baok and massaged her whole body, saying that all the muscles are connected. Then- she saicl, he asked her to turn over, bnt he dicl not re-do her bathing .sttit, so she held it over hcr as she

[rned ovcr. Slie statecl fhat he louched her breasts and kissed her body, Inoving her panties

" Tr. at 106-l08, 144,117" to Tr, at 84-91,149-150. 3? I'r. at 65-?0.

MONTALVO V. SBEC 0020 PROPOSAL FOR DECISION PACÈ I2 soAI.I DOCKET NO, 701-I l-8468.8C

aside and kissiug ¡er vagirra. She said that she told bim to stop, but he raped her. ,'lhis was, said

V,S., the second rape. z\ftenvard, she stated, she grabbed her things and ran out to her car'18

After these events, said Student 1, she began to have suicidal thoughts. She stated she

had not experienced any suicidal icleation prior to her sexual assault,-te She specifically denied

" talkiug on the telephone to Mr. Montalvo about thoughts of suicicle'ao

V.S, compete¿ in the regional me.et held in late April in San Antonio, brrt did not qualify for the state meet to be held in May in Austin. She testifred that Conch Montalvo massaged her inappropriately at the hotel at regionals, but that, afler regionals, did not give her any more massages. Although she was not eligible to compete at the state meet, she traveled to Austin *8"4f also went on the tríp, According rc V,S', with stuclent K.T,, who did qualify. Stuclent Mr. Montalvo called the girls in one by one for about 10 or 15 minutes each, and he gave each a

little present.42 V.S. said that he told her he would visit her the following year in Corpus Ckisti, and he would make up a story so that his wife would think he had gone hu¡ting.a3

V.S. testified about telcphone calls with Mr. Montalvo in the spring of 2008. She said that he would ofìen call her. She rvould also call him because, if she did not, he would call her.

The calls occurred at night, following practice, sometimes very late, Some calls were long' Student I stated that they woulcl disouss track ancl her upcoming race's, how she needed to visualize a race irr her hcad to make it easier, and her scholarship, Thc number of calls went up

quite a bit following her hamstring i¡jury. She indicated tlrat the calls rvere not sexual in nature,

except that lvfr. lvfontalvo,rvould talk about his problems rvith his rvife, and how they ditl not ¡ave sex. V.S, also said Mr. Morúalvo would "tell evct'yone" about his nrarital problems. She said that most of the conversations were just him talking, and he often repeated himself' There

rs Tr. at 70-?8. ]e Tr. al 126, 40 Tr. at 850, ,' The ALJ surmises this rvas student E.P., who was a witness in lhis casc, a2 At anorher poinr in her testimony, Student ! s¡icl thot Mr. Montalvo talked to her for longcr than he did to the other girls. Tr. at 130. n' Tr. at91-95, 153-154,

MONTALVO V, SBEC 0021 soAH DOCKET NO. 701-1!-846E.8C PROI'OSAL FOR DECISION PI\GE 13

was nothing, she statcd, that he told hcr on the phone that he could not have told her during the d"y.'o

V.S. complainecl that Mr. Montalvo stretched girls in inappropriate ways. She described Jeg stretches in rvhich Mr, Montalvo was close to the girls' bodies. She saicl that the stretching occunetl out in the tfelcl.as V,S. also stated that Mr, lv[ontalvo would snrack girls on thc bult.a6

V.S.'s parents trustecl ancl ad¡nired Mr. Monølvo, statecl V.S, He assisted with the scholarship, he sometimes visitcd V.S.'s home, and he once cÍtme to the house to show V,S.'s parentsllow to rub dorvn her injured area. In mid-May, when there had been some difficulty with getting the proper amount of financial aid, Mr. Montalvo l\'ent to Corpug Christi with V-S. and her mother to iron out the problem, V.S. stated that she did not want him to go, and told her

mother so, but her parents trusted Mr. Montalvo so much that they insisted he go.a7

Tbro¿ghout the spring, said V.S., she did not tell anyone about the assaults. She stated that she r.vas afiaid to tell her parents beiause her father has a very bad temper. She also wanted

to oom.pete, and she rvas afraitl others rvould not believe her, because Mr' Montalvo had a rvay of manipulating everyone into thinking that everything he did was okay, Sbe did not want to be around him, but she felt she hacl to act like nothing was going on. She laughed and talked around him, including r.vhen they were being filmed for a local telet'ision nervs story about her a8 sclrolarship.

In the summer of 2008, V,S. testified, she began to voice her accusations. She stated that, in Jnnc, she told her mother that Mr. lv{ontalvo had touched her, Stuclent I said that she told her

mother in English, and her mother did not really understand what she had said' Her mother

calle

4{ Tr. at 95-101,169-170.

'¡i Tr., at ?g-83, ú T¡.. ai lj1-136. V,S, made simjlar s¡atements in the Child Advocacy Côlrter interview' Exhibit 4 at 8-10, a" Tr, at J06. 108-l 10, 136. n 'fr. '79, 105, 134, 154-151 . at

MONTALVO V. SBEC o022 PROPOSAL FOR DECISION PAGE 14 soAH DOCKDT NO. 701-ll-8468.DC

details, Her father got a gun and saicl that he was gòing to kill lr4r, Montalvo, She did not tell him rnore because her father hacl been in jail before, and she did not want him to do sornething a¡d have to go back. And, she did nol. want to tell anyone else because she knew slie would be' t¡e subject of gossip. She did call Mr. Montalvo, she stated, and told him that she had told hcr parents what had happened, and not to bother her anymore. After that, she indicated, he ne'ver

called her again. Then, after she tvent to college, V,S. discussed these tnatters with a couttselor, who reporred them to the authorities because V,S, had been underage in the spring of 2008' Now, V.S, said, people whisper about her rvhen she is out in public in Rio Graude City.ae

V.S, acknowledged that, in the fall of 2009, she returned home and allended a track meet at which she had contact with Mr. Mlntalvo, She denied requesting to ride on the bus rvith the

teanr.5o

V,S- also acknowledged that, following the events in this case, she made a false outcry to the police that she had been kirlnappecl. Sbe testífiecl that sbe dicl so because she wanted someone to stay with [er, and not leave he¡ alone, and she wanted that person's attention. She

.,That,s what I had to do to have somebody in the apafiment rvith me."5l Student 1 further stated,

admitfed to lyi¡g on Facebook about being pregnant i¡r orcler to get her boyfrieud'to stay rvíth her

in an apartment because she does not like being alone'sz'

b, V.S.'s Statemeút at the Chikl Advocacy Center

Student I was ìnterviewed by a rvorker at the Child Advocacy Center in Rio Grande City

on May 28,2009.53 In the interview, V.S. tleseribed evènts in the spring of 2008, This surnmary

ae Tr. at I l0-l I 5. ro Tl'. at 157-159, Jr Tr. at 124-125, She did nor iclentity wh.ose atrerrtion and company she was sccking. l"rom the coDtext of lhe i¡ue.rtionilg, it appears tltat it nray havc heert llcr lroyft icrrcl' il 'l'r. at 120. V.S. dìd no¡ further elaborate. Othcr evidcncc in thc casc indicatcs that the Facebook post

occurrecl in the spring of 2009. Tr'. al 460-4ól (K'A' rcstimony)' r.'fhc DVD an¿ the transcripr of the interviev* ore Staffls Exhibi¡s 4 and 44.

MONTALVO V. SBEC 0023 soAH DocKE'l' No, 701-lr-846s.ÊC PROPOSAL FOR DECISION PAGE 15

only sets out V,S.'s staternonts that cliffer frorn, or add to, what she saicl in her testirnony at hearing,

Overall, said Student l, the iuappropriale massages occuned 50 times or more) all

Mr. Montalvo wai giving her such massages up to 4 times per day.sa The abuse occurred at the rniclclle school f,reld bouse, .the higb school weight tootil, aud at bís house.ss She stated she did not tell her parents because they would not believe her,56 She also said that, if she did not kiss

Mr, Montalvo as he lequested, he would tqll her parents that slre was undetperforming in track, ancl they would get mad at her,s?

Concerning the alleged incident in r+4rich Mr. Montalvo offbrecl V.S, rnoney for sex, slte stated in the interview:

And he was like uh,.,I've heard that your [sic] like really good and whatever. He was like I know your ..,will you evsr havs sex rvith me? .A,nd I was like no coach I will never do that rvith you, And he was like rvell I know your parents need money and sttrff, I have money, I just rvent to the bank right now, I have--$2,000 with me. That's what he saicl íwas like no I'm not going tõ do that coach.s8

In the intewiew, V,S..described only one incidcnt of rape: the occunence in the field house, Her clescription was largely consistent with that of her testimony at hearing, She stated that Mr, Montalvo told her not to tell auyone or she woulcl lose her scholarship aud be "a nobody." She also statecl that, afÌenvard, she asked an olcler friend to buy "plan B" for her.se

With respect to what happened rvhen V.S. 'weni alone to Mr. Monlalvo's house fo use the

hot ¡rb, she statecl in the interview be massaged her. She said that, cvery other time she had been to lvfr. Montalvo's house, his wife had been present, but this time she was not there, According

t stafi's Exhibit 4A a¡ 16. tt ltl. ar l7-18. 36 Id.at77. sj ld. at 19. sì Id. at ll2. !ç Tr. at 22-21 . Thc ALJ as.sunrcs that "pìarr B" is lhe brand nar¡re or colloqIial expt'essiort lor a "tttot'ning- afìer" contraceplive.

-

MONTALVO V. SBEC 0024 soaH DOCKET NO. 701 -1 l-8468.EC PROPOSAL F'OR DECISION PACE 16

to V.S., he took her bla off, then put it back on, and he touched various private parts of her body and engagcd ill oral sex. She said intetcourse did not occu¡.óo

When talking about the state track meet in Austin in May of her senior year, V,S, said that Mr. Montalvo brought in each other girl 1o his hotel room to talk for about l5 minutes, but t¡at he kept V,S. in there for 2 hours. She said that he made her hug ancl kiss him.Úl

In the interview, Stuclent I said the first person she told about these events was her counselor at college. She told the counselor because of the emotional shain, she indicated. Then, she said, she told her parents in February 2009,62

3. lestimony of llrasmo l\lontalvo

Mr. Montalvo began working as a teacher fi 1992. At first, he was a "ltolcling teaoher" r.vithno cerlifrcation or benefits. Then, in about 1995, he received emergency certit'ication, followed by full certification in 1997. He has been working as a full+ime teacher ever since'd3

V.S. and Mr, Montalvo fi¡st met il t}e sunrmer before she entered ninth grade. According to Mr. Monralvo, he never touched V,S. in any inappropriate way or in a way that could have been misinterpreted as inappropriate.#

In thc summer of V.S.'s freshman year, said lvlr. Montalvo, her doctor told her she had a heart condition that could make it dangerous for her to run. Mr. Montalvo stated that he told V,S.'s mod:er that, if she were his child, he rvould not let her run, IJowever, V.S.'s nrotber

replied that she was goin-e lo let her daughter do what she loved to do.65

'û lcl. at 14-16, 43-46; 6' lrí. a|34. 6! td. at 38-39 .

ó3 Tr, at 725-72':. óa Ir, at '12"1-728. 65 Tr. at 3'1)-3'¡2.

MONTALVO V. SBEC 0025 PROPOSAL FOR DECISION PAGE ]? soAH DocKET' NO. 701-l l-8468.8C

lvl¡. lvlontalvo was asked about the occasion of V,S,*s injury at the Doma meet' He said

that he did not touch of massage V,S.'s hamstring because he was busy with all [he other events

at the meet.66 LIe stated that Assistant Coach I¡ checkcd out V,S.'s injury. Hc fur'ther said that v,s.'s falher approached him at tbe rneet after V-S. was injured. According to Mr. Montalvo, .,I wanr to handle this. I will take her to the cloctors. I clon't want bet seeing a her father sâid, trainer, but traineL.,, Mr, Montalvo said he told V,S.'s thúer he woulcl prefer for V'S. to see the paleuts rvere tbe father saicl the trainer rvould make her sit out. In Mr. r\4ontah,o's words, "Her extreme on having her perform," According to Mr. Motrtalvo, V.S,'s iather said he woulcl takc V.S. to a doctor in Mexico.67

Tlre college recrurter gave V.S. a scholarship contract at the Donna meet' lvfr' Montalvo I 's parents, and testified that, after the rneet, he looked over the contract at the request of Student totd them he thought it was a good deal.68

Mr. Montalvo furlher testified that, following the meet, back at home, he told V'S. tç go

to the Uainer, but she refused, as she hacl in the past. Mi. lvlontalvo said that she told him she

he stated thât he was seeing a doctor in Mexico. Hcilever, at anofher point in his testilnony and he also soid shoulcl have sent her to see the trainer, but he could not recall whethe¡ he did-so,

that he did ¡rot send her, saying that she refused to go. According to lVIr. lvlont¿lvo, V,S' was

afrairJ of not being allowed to participate at district in her senior year' Mt' Montalvo also saicl

. that, once V.S. regained her range of motion about two weeks following her injury, he would rub

down her hamstring. Hoyever, he statecl, he would never give ller more extensive 0r

inappropriate nìassages, He said he gave other girls ntb do$'trs, too, ovetall, he aclclressecl

V.S.,s injury with'stretching, rub down.s, ice baths, and the whirlpool. FIe denied telling her to

go to Mexico for injections. I{e said that V.S. was able to restllne competing, and in lacl shc

competed at clistrict, qualifying for regionals, lvlr. Montalvo stated that he never told V'S' she

SOr\H's proceclural rules to 3o, Mr. Montalvo filed an arlswer allegation: "ln or around February of 2008, Student I injured ndeni took Srudent I to a bus and massaged hel leg at rhat tilx of Hearing, filed rvith SOÄH), There is no allegation or evideltc in anY waY sexual' ó? Tr. at 355,35'l-158,360,366,369,3J0,J89,736-13s,'154,796-197'825-826' 68 Tr. al '194-'795.

MONTALVO V. SBEC 0026 soAH DOCKET NO, 70t-ll-8468.8C PROPOSÄL FOR DECISION PAGE I8

could lose her schola¡ship if she ,vvent to the tmirter. FIe said he just told her Ìhat the college's

conlract said if a student clid anything that might embatrass the school, the student could lose the scholarship.6e

As to being alone after practice with V,S. at the fìelct house,I\4r. Montalvo testified that he dict not thínk that had ever happened. He said that he sometimes, but not frequcntly, had V'S,

or other girls stay after practice if they needed to work on something partioular. He said most of the hamstring rub dowrs he administered occuned in the lield, and he could not recall u'hethcr he ever rubbed her leg down in the field house, but he never rubbed her down alone in the field

house after else had left.7o He also saicl that he occasionally gave V.S. rides home late "u"rylo" at night after track meers ilr her senior year, so he was alone with her for a few minutes on those

ocsasions.?l

Mr. Montalvo testifiecl about the students' use of his Jacuzzi. FIe statecl that there rvere two occasions: one over spring break and one during Easter break, During those times, he said, the whirlpools and ice baths at school were unavailable because the school persoturel responsible

for untocking the training room were not inctined to do that during school bleaks. Around the time of spring break, Mr. Montalvo testified, V.S. was just starting to jog and participate in practice follorving her injury, and she wanted to use the lacuzzi, She came r,vith two other girls, Mr. Moptalvo said his wit'e was pressrt in the house while the girls used the Jac.uzzi.?2 On the seconcl occasion, V.S. came alone during Easter break. According to Mr. Montalvo, his wife and

children were present in the bouse on that occasion, too.73

6' 'lr. ut 342-349,3-\8,3ótl, t'l},394.402-403,736"738-14r,'150,'l52-753,799' ?0 -348,384:386, 409, 411'412, 741-742, 800-801' Tr. at 347 ?r Tr, at 830, ?2 Mr, lr4ontalvo titrlJrer lestified tllaf,

MONTALVO V. SBEC 0027 soAH DOCKET NO. ?01-11-8468,EC PROPOSAL FOR DECISION P;IGE l9

Mr, Montalvo denied offering V,S, or her family any money, for sex or otherwise, Ile stated that, at that time, he was not in a position to give money to others. and it took him about

3 weeks to make $2,001),74'

. V.S. went to the State track meet in Austin in May 2008, Although she had not qualified f'or state, she and another girl who had not qualilied were allowed to go. Mr' Montalvo explained that tbroughout the years, V,S. had done vety lvell, practiced, and given her all, so it was appropriate f'or her to attend. IJe stated lhat he met with each girl in Iús hotel loom for about l0 minutes. during rryhich time he kept the door open, He gave each girl a little gift, costume jervelry that his sistcr had made, and told eacb girl it \Ã,as a token for her hard work and {edicafion. He saicl that, as he talked to thern, he Íied to be motivational and to hit on the positiúe poínts of what they had done right and 'what their futures held.7s

Mr. Montalvo descdbed V,S. as someons lacking in self-esteetn who needed c'onstant attention and reinforcement. She "needed to hear lhe praise, to hear you can do it, you can do it.,' He indicated that she was ernotionally neetly, having to "hea¡ it and hear it and hear it" so

that she could believe it.?6

With respect to the phone calls, Mr. Montalvo stated that the num6er of calls with V,S. jur¡ped in Februaly or March of 2008, rvhen she suflèred he¡ hamst¡ing iqiury. He said that the injury was devastating to Student l's family. Her senior year was suptrlosed fo be her year to shine. He stated that the injury made her feel so doun that she told him, on one occasion, she

had had a suiciclal tlrouglrt the previons rveek. He dicl not wa.nt to tell her parents becatlse he was afraicl thcy rvould oveneact, especially as V-S,'s father had an explosive temper. Ìvfr, Montalvo

testifiecl that he spent time on the phone with her, reading aloud motivational quotations flom John Wooclen (the IICLA basketball coach) arrd talking to her about track, her problems, ancl

horv to get into a better state of mincl. He stated that they sometimes tâlked at night, after his children went to sleep. Mr'. lvfolrtalvo said that V.S. rvoulcl often text him, and he would call her

1a 1'r,ai743. ?5 Tr.at745,804-805. Mr'.Monraivosaidthatthejewelrycostaboutfivetoten dollars. ld'af 33i,754' to 'l'r. at 728,'186.'190.

MONTALVO V. SBEC 0028 soAlt DocKDT NO. XXX-XX-XXXX.DC PIìOPOSAL I¡OR DÈCISION PAGE IO

back. I-Ie sraterl he dirl not talk to V.S. about his relationship with his wife, V,S' told him that she did noi have rnany fi'iends, and he thought that talking to her rvould help her. Mr'. Montalvo

also talkecl to other girls orr tlre telephone; he identified K,4,, 4,G., l!'P., and V,C., saying that

he would talk to them about track, how to improve their performance and to train, and also about

their problems. He thought at the time that the phone calls wete appropriate, rhat he was being helpf¡l to V,S. He felt tha[ she was getting better over time, FIe stated, "I thought I wa^s rlaking

a clifference."TT

'When girls graduated and plarured to run track at the next level, said Mr. Montalvo, he would buy them .hottr, wind suits, shirts, and shoes that they could use for their atbletics' He said that he did this lbr V.S,, too, but he never singled her out for special treatrnent.Ts

lvfr. Montalvo stated that V.S.'s behavior toward him never changed. After graduation, Mr. Montalvo aurange{ for a television interview about her scholarshíp; they both participatecl in the interview, in *hich V.S. acted cxcited and happy. Mr. Montalvo stated that she would hug him every day, she showed up at surnmer track piactice, and she was still behaving very friendly torva¡d him in April 2009 fiust befbre he learned of her accusations), whert she attended otle of the meets, Indeed, said Mr, Montalvo, V.S, wanted to riclc with the team on the school bus to that mee{, but he had to tell her no because of liability insurance conÇerns. V.S. still attended the meet, he said, spending the whole day there, helping him coach several evettts,T9

4. Telephone Records

lvÍr, Montalvo and Student I excharrgecl about 4tl0 phone calls from lfebntary through

.lr.rne 2008. The calling pealced in March and r.\pril 2008, with about 160 total caìls for each of those monrhs. Over tbe Febmary-through-June period,82 calls were afler'10:00 p.m.. rvith l\4r. lvlontalvo placing 80 percent of the late-night calls and V.S. placing 20 percent of thern.

1i Tr. ¡t404-406,728-'732,134,'156-75'r.,7't0-771,771, ,185-'t36,?89. Mr. Montalvo said he rnentio¡red to his assi.srarrr coachcs that he rvas trying Co help \',S. out, and hc also tolkcd Ìo 8.P,, to sec ilshc could bcû'iend V.S. I¡t. '¿t 40'? ,795-786. t8 'l'r. at 137,755.

" Tr. a¡ i 48-'r 4 9,'7 6l -'7 64, 821 -822; Respolt detrt' s Exhibits 23 and 21'

MONTALVO V. SBEC 0029 PROPOSAL.FOR DECISION PAGN 21 soAH DocKET NO. 701-lI-8468.8C

Overall; N{r.. lvfontalvo placecl 66 percent of the c.alls, artd V.S placed 34 percent' Most of the

calls lasted just seconds or a few rninutes, Nincteen oalls lasted over a half-h

5. TestimonY of Otber'Witnesses

î. Student l's Pnrents

yolandø. Søttclrcz, V.S,'s mother, testified that she knew and trusted Mr, Mont¿lvo,8l S¡e stated that, when her daughter injured her harnstring, he told them that she should not go to the trainer because collegos, when they award scholarships, look to see if a student athlete lns zur

injury on her record.82

Accordilg to Ms. Sanchez, Mr, Montalvo helped V.S, r,vith the papetwork for her scholarship and even 6avelcd to Corpus Clhristi with them to meet with representatives of the Ms, Sanchez stated tilat V.S, has not r¡,anted Mr. Montalvo to go with them, but Mr. and "óll"g.. Ms. Sanchez insisted he go to hclp with the scholal'ship issues,83

Ms. Sanchez said that she saw Mr. Montalvo slap V.S.'s bottom on two occasìons at her home. The first time, she said, v.S. got upset and told lúm to stop. Ms, Sanchez said that she, too, asked Mr, Montalvo to leave V.S. alone, and he jttst turnecf arouncl ancl left. The second time Mr. Morrtalvo slapped V,S,'s bottom, Ms. Sanchez stated, occurred on the same day.8a Ms. Sanchez said that she saw Mr.. Montalvo poke V.S. in the ribs, and V.S. becarne upset.85 Ms. Sanchez also said that V.S, stopped rvanting to go to practice alone, so Ms, Sanchez wor¡ld

Ec Exhibirs 4 and 5' Staffs Exhibits 2and3; Respondenf s Er Vfs. Saochez testißed through ân irrtetpreter, 8'Tr.af179-1ß0. tt Tr, at 184-l 85. u Tr. at lBl-182. lvls. Sanchez

MONTALVO V. SBEC 0030 soÄH DOCKET NO. 701-ll-84ó8.DC I'ROPOSÀL FOR DECISÏON PAGß22

send one of her sons along. In acldition, V,S. did not want any pic1rlrgs taken with Mr, Montalvo

at her graduation.s6

O¡e day, said Ms- Sanchez, V.S, came home from Mr, Ivfontalvo's house, where she had been using flie Jacvzzi for the second time. V.S. came into the house rwapped i¡ a torvel and

crying, but she rvould not say wlry she was so distraught, When pressed, said Ms' Sanclrez, V'S' told her that she was upset about her leg injury,s7

On anotlrer oÇcasion, said lvfs. Sa,nohez, V,S. was late coming home. She called V.S. repeatedly and got no answer. According to Ms. Sanchez, she called Mr. Montalvo, who said that V.S, was withhim. Ms. Sauchez saicl she could hear V,S. crying in the backgror¡ncl, and Mr. Montalvo said it rvas because she was upset about her leg injuri,. When asked r¡r'hat the matter was, V.S, told her mother it rvas her leg.88

Ms. Sanohez testified thar she knew Mr. Montalvo talkect to V.S. late at night for long periods, She would ask her daughter why there r,t'ere such late calls, and she said that he was giving her advice for the next meet arlrl that sort of thing. lvfs. Sanchez said that Mr. Montalvo would also t¿llc to V,S. about his problems wjfh his wife, and woulcl even call Ms. Sanchez and

tell her, too, about his marital problems'8e

Accorcling to |v{s. Sanchez, she first leamed about what had happened to V'S' from her husband. After V.S, went to college, she told her father that lvlr. Montalvo had assaulted her' Ms. Sanchez testified that V.S, and her father returned home that day, and Mr. Sanchez told his wife that Mr. lVlontalvo had raped their daughter. Ms, Sanchez said that she fainted, and her other children callecl their grandrnother to come over because theír mother wâs not doing well. Ms. Sanchez slafecl this was the first time that V.S. hacl strggcsted that Mr. Montalvo hacl done

8o Tr. at 192-193. tt Tr. ot lll2-lll4. 88 Tr. at l8?. ¡e Tr, at I 38.

MONTALVO V. SBEC 0031 soAII DOCKET NO. 701-Il-8468.8C PROPOSAL FOR DECISION PAGE 23

anything wrong, She did not recall any timc in the sumrner when V.S, said that Ml. Montalvo had touched her and Mr, Sanchez got his gun out,eo

Solome Snrchez, V.S.'s father, testified tlat he h'usted Mr. Montalvo "100 percent" and

that he was tike a seconcl father to V.S, Mr. Sanchez said he talked frequently with Mr.lvfontalvo to keep up wifh his claughter's track activities.el According to Mr, Sanchez, lvlr, Montalvo assisted the family in all aspects of obtaining a college sclrolarship for V.S., who was the first person in the family to go to college. The scholarship, he saìd, meant a great deal to

v.s.e2

After V.S. injqred her hamstring at thÊ Donna track meet, said Mr, Satrchez,

Mr.lvlontalvo would not let V.S, go to the trainer, Mr. .sanchez stated that Mr. Montalvo saìd going to the trainer could affect her soholarship, and V.S.'s rehabilitation would be managed instead by himsolf ând V,S,'s tnothÊr and father, According to Mr. Sauchez, this conversation ocçurred when Mr. Montalvo same to V.S,'s home to discuss the scholarship contract, just after

the Don¡ra meet.Mr. Sanchez denied telli¡lg lvfr, lr4ontalvo that he would handle his rlaughter's injury himself. Mr. Sanchez testified that his rvife took V.S, to Mexicq for B-12 shots on N4r, lvfontalvo' s advice,e3

Mr. Sanchez also stated that Mr, Montalvo offered to lend hir¡ $2,000 to get tluough difficult financial times. While he appreciatecl the offer, said Mr, Sanchez,, he did not accept' N4r. Sanchez stated that V.S. never told him that iMr. Montalvo had off'erecl her money.ea

Mr. Sanchez testitìecl that, while she knew thal his daughter spent time talking to Mr. Montalvo by phone, he was unawafe of the frequency or length of the calls.ej

s Tr. at ls8-191, 194. er Tr. at ?01,221. e2' Tr. at2D],215. nr Tr. at 205-206,842-846. oo'r'r. or 208, 225 -226.

" Tr. ut 2Cl-202.

MONTALVO V. SBEC 0032 SOAH DOCKDT NO, 701-n-84ó8.ÈC PROPOSAL FOR DBCISION PAGE 24

One day early in thc summer break in 2008, said N4r. Sanchez, his wife called him at work and said she needecl 1o tall< to hirn about sornething imporlant concetning their dauglrter arrcl Mr. lvlontalvo. rMr.. Sanchez went home, ancl V.S, told him that Mr. Montalvo had totlched ,,, hor. lvfr. Sanchez said he grabbed his gun and pressed V.S, to tell him nore' She just kept

crying, however, and would not say more. He did not call the. police because V.S' was

enrbarrassed ancl did not want anyone to know what bad happened. Mr. Sanchez said that he had

no further contact with Mr. Montalvo after this time,eó

Then, said M¡. Sanchez, after V.S. bad gone to college in Corpus Christí, he went to visit

her. He kept asking her what had really happened. They were driving, and they pulled ovei, and

she fìnally "bustecl" and tolcl him that Mr. Montalvo had penetrated her. Ìvfr'. Sanchez said he

took V,S. back home, called a f'amily meeting, and contacted the police.eT

lr4r, Sanc[ez stated that he was not aware of V,S.'s ever telling him anythitig tlrat was not

true.98

b. Diana Garz¿-Louis' LPC

Ms. Galza-Louis is a licensed professional corurselor specializing in sexual abuse,

counseling both offenclers and .rictims. She is a licensed sex offende¡ treatment provicler, and she has been practicing counseling .since l984.ee Shc þstified âs an expert witness in this case.

Prior to her testimony, Ms. Garza-Lor-ús reviewed Staffs petition and Mr. Montalvo's an.swer in tlri.s'case, police records, the DVD (ancl transcript) of the inlerview of V.S, with the Child Advocacy Center, a CPS report, oharts concenring phone calls between Mr. Montalvo and

nu Tr. at ZOg-211. Mr. Sanchez stated that if V.S, had "callecì other people," lte rvould have killed Mr. Montalvo. Tr. a|224. k is not clear to the ALI rvhat he nleatu by tlìat statemer)t, 'lì'. ar 2ll-214. " es'1r..a1223. ee StafPs Exhibit 7,

MONTALVO V. SBEC 0033 PROPOS¿\L F'OR DECISION PAGE 25 soAH DOCKET NO, 701-l l-8,168.8C

a television V.S,, the testimony of V.S. in the crirninal trial, unspecified \Nitness statemenÌs' and interview of V.S. and Mr. Montalvo concerning her track scholarship,J00

Ms, Ga¡za-Louis fourd V.S. to be believable. According to Ms, Garza-Louis, V.S.'s experienced by confusìon about some cletails of events was consistent with the disassociation periodic display's of sonre victinrs of .sexual abuse. Irurther, said lr4s. Garza-Louis, V'S,'s in her taped intewiew were consistent with the behavior of a victim of abuse wbo is emotion trying to be strong but succunrbs, at monle'lts, to saclttess'l0l

In addítion, Ms, Garza-Louis indicatecl that V,S.'s clescription of Mr. Montalvo's actions matolred pattems of sexual abuse involving groomi¡g' secrecy, and manipulation' Ms' Gana- irrteracting with the Louis stated that sexuol abusers often begin to set up a situation for abuse by gave her' and victim in a caretaking lole, She pointed [o the massages V,S. said Mr' Montalvo said, a, sexual lús lrelp in obtaining the sc.holarship she so wanted. In this'way, Ms. Garza-Louis

abuser creates an atmosphere of trust in which the next step - sexual contact - will not seem so

shocking. S¡e s¿id that secrecy, such Mr. Montah'o's telling V'S' not to go to the t¡ainer with as

her i'jury, is also often part of the equation. And, she stated, the world of athletics, with ils close

relationships and physical contact, is an envi¡onment especially suitecl for this kind of abuse'

She views V.S.'s high degree of need for attenlion and cate, her lack of close friends, and her 'fhe anxiety, cl.epression, and loss ctesire not to disappoint as making her particularly vulnerable.

of interest in 6ack reportecl by V.S, are typical reactions to abuse'102 i"

À4s, Garza-Louis said that fhe yearlong delay belbre V,S"s oulcry does not diminish her their experiences, ìn creciibility at all; manv sexqal abuse victims wait some time before voicing part because they feel shame ancl embanassment,l03 V,S,'s continuing to seek Mr, Montalvo's

company and act nOrmaììy, even after thc onsct of thc abnse, also reflectecl a knowu pnfiem to repeat a harmful among victims, referred to as "repetition cotnpulsion"' which is a tendency

r0o Tr. at 4tg-120. Ms, Carza-Louis cli

MONTALVO V. SBEC 0034 soAH DOCKET NO. 701-ll-8468.8C PROPOSÂL FORDECISION PAGE ?6

situation in an atternpt to correct it ps¡rhologically.l0a Also, N4r. N4ontah,o's popularity and

standing in the community do not meân that he was incapable of c.ornnritting sexual abuse,l0s

Ms, Garza-Louis saw no motivation fbr V.S. to make up these charges. She said that some people may fabricate charges in orderto gain attention, but she sav/ no sign of that inthis

case. In fact, she noted, the attention V.S dial receive as a result of her accusations was negative. in that she suffered rejection in the community'106

On cross-examination, Ms. Garza-l,ouis ackltowledged that there ale indications in the materials she reviewed that V.S. is not considered a trustworthy person! and that she had lied in the past in a manipulatit e mannçr.107

Rio Grande City CISD Teachers and Coaches

Rey RamireT, has þeen with the Rio Grande City CISD for 16 years, and is presently in his sixth year as alhletic director for the rlistrict. He has served as a coaçh for 13 years,lo8

Aócording to Mr, Ramirez, while CISD coaches *. no* tolcl not to n¡b down students

ancl to let the trainers do it, no such policy existed in 2008.rot FIe testifiçd that the. coaches have

been told that if an athlete is injured, it is protocol that the trainer be contacted, so that the hainer

can refer the athlete to the doctor ot provide first aid'rl0

roa Tr. at 43 I 433. tts Tr, at426. l's Tr. ar 433-435. ro7 Tr. at 439-4,10,442. The ALJ sur¡¡ises tbat the nlaterial to which lvls. Garza-Lottis refert'ed was, at leasr in par1, V,S.'siestimony utrdet cross'examillation at the crin:inal trial' ro8 Tì-. at 210-zJl. cannot stretch atl]let€s, but that they 'oe Tr. ur 2i4,246,254-255. He said therc Ìs no policy that coaches shoutdjnstusetheirbestjudgmentanddoitinarvaythatdoesnolapp€a¡inappropriate. Tr.at246' t'o 'fr. aÌ 234-235,242.

MONTALVO V. SBEC 0035 soAn DocKIJT NO. 70l-tl-8.168.8C PROPOSAL FORDE,CISION PAGE 27

Mr. Raurirez stated that coaches are acìvised rrol to give students rides home,lll and he cloes not believe it is appropriate for a coach to allow a stuclent ðthlete to use a Jasuzzi in the

master bath of the coaclì's Jrouse.l12 I-Ie,stated tlrat over 400 calls with a stucfcnt in a four'month period is excessive and not appropriate, although he further said that the only thing that would make phone calls problematic is inappropriate content, He explained that if the coach is trying to help the student progrcss as an athletc, phone calls wor¡ld not be a problem, although he said he was a "little bit concerned" about carrying out this kind of rvork on a daily basis outside the context of practice sessiolts.l13 Mr- Ranlirez stâte that, rvhile there is no n¡le against it, a coach's being alone in a hotel room with a student is not a good idea, and a student could make a false accusation about impropriety in such a circumstance,l!4

ì\{r. Ramirez said that he has worked with Mr. Montah'o for about five years, and has j never seen him clo anything improper,rr

Esther Guerra Pena was a coach with the Rio Grande City CISD for l0 years, her last year being 2007. She clid not ooaoh with Mr. Morrtalvo in 2008. She is now the head secretary for the athletic departrnent of the juniol and high schools.r16

Ms. Pena testified that, through her coaching, she knetv V.S. a¡rcl had daily oontact with

her in,2007, although i\4s- Pena stated, "l didlr't k¡ow her-klrow her. I just..,knolv her as a coach," Ms, Pena believes that V.S. is a trtrthful person.llt

Ms. Pena also lcnows Mr. lvfontalvo, having coached with hirn for four years''It She said thaf he was a .strict coach, and respected, especially because he had so many athletes he had ,+-+-;Æ )tt Tr. at232. tti 'l'r. ar z,fl .

rrt Tr. at 241-242,247,256-25v, tta 'I'r. at24l- 242,245,252'253' trt 1r. at 248-251. tt'i 1'r, al26 l, 2b8-269. t t''fr. ut 261 -262, 27 8.

ltt Tr. a¡262,

MONTALVO V. SBEC 0036 soÄH DOCKET NO. 701-11'8468.8C PROPOSAL FOR DECISION PÅGE 28

known since they were very young. People obeyed him.)19 However, she said Mr. Montalvo's neth<¡d of stretching the legs of some female athletes ditl not look appropriate ('even though the mechanics of the stretching rvere fìne). z\ssistant coaches nrentiolled it to lvlr. Montalvo. Sone girls refused to be stretched by him, but the girls he had coached sirice they were very young were comforlable with it'120 Ms' Pena also said that vh. Montalvo would slap girls "not on their btrtt/burtt," bnt "in betr,veen the hip and the butt" or "ncar" the butt, in a ma¡rner that said "Go get

thern" or "Good luck, good job," He did this ',vhen the parents were present, but a coach from another school once said it looked bad. Ms. Pena indicated that tlre propriety of this conduct was

something that people could have different opinions about.l2l

James Meguire is the head athletic trainel at Rio Grande City HS. He has held the position since 1998, and is presently licensed by the Stale of Texas as a trainer,r22 His job is to recognize, assess, treat, manage, rehabilitate, and recondition athletic injuries under the direction of a licensed physician, Þle knows Mr, Montalvo, rvho started working for the district in the

early nineties. Mr. lvfeguire testified that Mr. Montalvo, although an educ.alor, is not a licensed trainer and therefore cannot prâctice athletic training.tzl

Mr, Meguire testified that it has always been the Rio Grande City CISD's policy to repofi injuries to the athletic trainer. He said that the coaches are supposed to talk to the parents. If the trainer is uravailable ancl the parents want the child to be seen iurmediately, they can take the child to the doctor, but the coache.s usually harre the children go to the trainer first for the coordination of insurance papenvork, Parents can clecide to take the child to the doctor instead of to the rrainet', take the child to Mexico f'or shots (which, Mr,lr{eguire said, is conrmon), ordo nqthing at all. According to Mr, lvleguire, Mr. Montalvo is arvare of procedure.s and usually calls the trainer when a snråent athlete gets hurt. If a student with an injury is not reported to the

I.re Tr. at 263-264. f 2t Tr. at 264:26i,2'10,2'12. Ms. Pena said tbat, after about 2005, there were no student trainers to stretch athietes, so lhey vrould ask thc coachçs to do it,

'2r fr, at 26'1-268,272-275.

"' Tr. at 284-285. Mr. Meguire also worked as a lrainer for the Rio Grande Ciry CISD from 1990 to 1991 ld, at 284. ti! -lr. at286-258.

MONTALVO V. SBEC 0037 PROPOSAL FOR DECISION PAGE 29 so^H DOCKDT NO. 701-ll-8468.8C

trainer, the afhlete may not get adequate medical attention, may not be able to conrpete at ma-rimum ability, antl may suffet from prolonged injury'l2a

According to lvlr. it is not appropriate to treât athletes at home' He Meguìre, oharacterized such a practice as wìethicàI, stating that it l'opens you up to liability and accusations, and it's an inappropriate place to clo treatments."l2s FIe stated, however, that there is

no actual rule against it.126

In general, said Mr. Meguire, he is careful in the way he treats female athletes, limiting his physical contacl and avoicling stretching and rub dorvns to head off any accusations of inrpropriety. He uses stuclent t¡ainers or his female aide for muc,h of the necessary physical contact, This polioy is not written, however.l2T

Ar one point, Mr. lvfeguire talked to Mr, Montalvo about stretching the girls,

¡4r. lvleguire had never seen Mr, lvlontalvo stretch his athletes, but two assistant coaches rnentione¡l to Mr. Meguire that it lookecl inappropriate. Mr. I\4eguire indicated that there ltad

bee¡ an earlier inciclent with a Rio Grande City CISD assistant trainer who had inappropriate relationships with female students, and there was a need for caution because the athlstic staff was

under scrutiny. lvfr. Meguire's corlcern was the possìbility that sonreone rvbo did not like the coach could make an accusation that he was doing something \\rong. Mr' Meguire saicl that

stretching the hamstring rnuscle involves pulling tlre athlete's leg up, putting the sEetcher's head near the athlete's groin area, and it looks inappropriate even when done properly, Mr. Meguire tokl Mr. I\,lontalvo to be careful, ancl he repliecl that he woulcl take the matter under advìsement.

Mr, Meguire. said that he is not Mr. lvlontalvo's supervisor. He also noted that the stretching was part of lvfr, lr4ontalvo's rouline as a coach, and coaches do not easily change tlteir routines. lr4r. Meguire said thele was no written rulc about male coaches stretcbing female athletes'128

r24 Tr. at 288-294,328. rzi Tr. at 295-296. t2Á Tr. at 327 .

r'? Tr. at 296-291 ,332. '2ß Tr. at 301-303, 318,320-323.

MONTALVO V. SBEC 0038 PROPOSALFOR DECISION PAGE 30 so^H DocKET NO. 701-ll-84ó8'IìC

n¡b With respect to rub clorvrs in particular, ìt4r. Meguire said that it is fine for a coach to an athlete before a competition, but it is not appropriale for a coach to massage or ntb down of a down an injurcd area as a fonn of therapy. He stated that someone lvithout the expertise and that trainer would lack the ability to discern whether an injured a¡'ea should be massaged, massaging an acute.ly injured tlr inflarned alea call delay healing and prolong pain' He also saicl

that, in his clepartment, females rub down females,l2e

Mr, Meggire testifiecl that the.re were whirlpools available for Mr' Montalvo's use at all

times.¡3o Flowever, the faining room is not open to the coaches over spting heak and Easter

the room up,l3l break, although the coaches cur call and get the trailtels to come and open

Mr. Meguire is familiar rvith V.S. because she was one of the top athletes at Rio Giande City HS.' She came to the trainer for treatment of an injury to her "quad," a calf injwy, and shin

splints, She came to the h'aincr on April 1,2008, and received some attention to her quad and

shin splints. She did nor come to the tfainer for a hamstring injury.l32

Llnrla Lu is presently a teacher in Mission, in the Sharylzurcl Independent School District' years, including the She had previously been employed at the Rio Grânde City CISD for three 2007-2¡0¡acaclemic year, where she coached track as zut assist¿nt to lvlr' Morrtalvo.r33

Ln testified that she knew V.S. According to Ms. Lu, V.S. was not lrustworthy i\,Ís.

bec¿use "her stories ,¡,ould alWays change." Further, said Ms. Lu, V'S' had a reputation for i:rappropriate being untnrtht'ul,r3a Ms, Lu stated that she never saw Mr. Montalvo do anytlring with V,S, or any of the other girls-li5

.ffi tze f'r. at à01-301. He statecl that it is an unrwitten rule in hís depafitnent (the traíners'departrnent at Rio Granr.le City HS) that lnals rrainers not be atolle rvith female alhlstes. Icl' al313-120, iro Tr. a( 3lo-312,

'3r Tr. at 329, lî t. t12 ^lr . at 29't -300 .

tr3 'l'r', at 49?-499. ¡3n Tr. at 5oo i3r 'l'r, at 5oo.

MONTALVO V. SBEC 0039 so/{H DocKET NO. 701-l l-8468.8C PROPOS,,\L FOR DECISION PAGE 3I

r\s to st¡etching, Ms. Lu said that she saw Mr, Montalvo stretch girls, which rvas not inapplopliate, She heard no complaints about it.l36

Ms. Lu also saw Mr. Montalvo give girls rub dowrts, and saw no prob-lem with the practice.l3T Ms, Lu further stated that she had seen Mr. Montalvo give V.S. rubdowns at the fìeltl 138 ptactice until the last girl letl, house, on thc mats, once a week, Ms, Lu said that she stayed aû

but then saicl she did not stay every single time.l3e lvls. Lu herself gave V,S. massages while she was injured, after she told Ms. Lu that she was seeirrg a doctor in Mexico.la0

Vy'ith respect to phone oalls, Ms. Lu rvas aware that Mr. lvfontalvo spoke with V.S. Ms. Lu thought it might have been daily because Student t had "a lot of issues," wanted

attentiou, and had voíced an intent to commit surcide, As a result, said Ms, Lu, she did not believe there was anything wr.orig with Mr. Montalvo's talking 1o V.S. orr a daily basis and for long times, She statecl that coaches use positive reinforcement to help their student athletes succeed, a¡d commtmication is key,lal Mr. Montalvo would read inspiring quotations to V.S. ancl discuss them rvith her; Ms. Lu said, "I thought it was great."l42 Fr.rther, she suggestecl, âs to

tþe length of the calls, V.S. corild lixate on sonrethittg, at times going "to the extreme."l43 And,

according to Ms. Lu, Mr. Montalvo lived in a rural area with poor telephone sen'jce and frequent l4 intenuptions in service during a convet:satiott.

13ó Tr. at 500-501.

'3t 'fi. ur 501-502.

'10 Tr. at 5 ! 8-520. t1' Tr. øL 520.

'to Tr. al 520-522. ;'r Tr, at 502-503, 5l t, 5t4-5 15. Ms, Lu said that, when a student spcoks of suicide. it should be reported to solneone. I-lorvever, she also indicatsd that she Cid not ltnow whether to believe any slatetllenls by V.S. to M¡. Montalvo about suicide, becausc V.S. "cons¡antly chauges her stot7" and says things just to get attention /d. at 5t2-5 13. Ms.LLr thoughttharMr.Montalvo'sworkwithV.S.wasenoughtomakcsurcshcdidnotcotnmitsuicidc. Id.al5l5. lt2 Tr. ¡t 515. rcr Tr. ar 513. roa 'l'r. at 514.

MONTALVO V. SBEC 0040 soAll DocKRT NO, 701-l l-8468.8C PROPOSAL FOR DF,C¡SION , PAGE 32

Ms. Lu recallecl V.S.'s hælstring injury at the. I)onna rneet in 2008. She said that she went to t[e school bus and checked the irijury. lvfs. Lu stated that she concJuclecl V'S, needed to see the trainer', and she tolcl tbis to V.S, Ms, Lu sajd she was nol present when Mr. Montalvo

discussed the matter with V.S,'s parents) rvho rvere in the bleachers. V,S, went trp into the bleachers and spoke to her parents, Ms. I-u said that Mr. Montalvo referred \¡.S' to the trainer,

However, V.S. did not, saitl Ms. Lu, seek out the trainers. lvls, Lu said that she did no[ lollorv V.S, to make sure she went to the trainers. She stated, "[W]e just say, 'Go to the fraincr.' Whether or not she shows up or not, it's out of my hands." She said it was protocol to refer an injured shrdent to the trainer, but it was up to the student ancl the pat'ents to acnlaily decicle to go or not.laS

Ms. Lu stated she never notiçed a change in V,S,'s cletneanor toward Mr. Montalvo in the

spribg of 2008, The following yerir, in the spring of 2009, Ms. Lu said, she wâs present at a track meet at Mission. She stated that V.S. was there, having apparently come on her orvn' Ms, Lu stnted that V.S. was "riglrt next to" Iúr, Morrtalvo, seeking attention frorn hirn ancl

others.la6

ln a written statement, Ms. Lu said that Mr, lvlontalvo was prol'essional, conscientious, a

role model to his colleagues, attd meticulous as to rules.laT

Ricardo Snenzis in his 12ü'yeat as the principal at Nortb Grarnmar Elementary School in Rio Grande City.r48 Mr, Montalvo has been a P,E, coach at the school throughout Mr. Saenz's tenure there. Mr. Saetrz stated that there has never been an occasion at the elementary school in

whir:h Mr. Montalvo engagecl irr misconcluct or clispla¡'ccl a lack of integrily'¡4e About

rai Tr. at -s04-508, 515-5 18, 521 , 52'1 ,

rao Tr. at 508-5 I 0. I"r Re.sponde.ut's Exhibit I l. t'8 Tr, at 620-621 .

tat 'l'r. at 622.

MONTALVO V. SBEC 0041 PROPOSAL FORDDCISION PAGE 33 soArr Docl(ET NO. 70I-t l-8468.8C

Mr, Monmlvo, Mt', Saenz stated, "[-l]e's a good man...I'Ie ukes his job very seriously and he

does a good job."l50

Furt¡er, stâted Mr. Sacnz, all three of his childreu have been coached by Mr. Montalvo. Mr, Saenz's daughler, K.S,, who is also a witness in this case, was coached by Mr. Montalvo, Mr, Saenz st¿ìted that he tlusts lvlr. Vlontalvo arouncl his daughter,lsl

Mr, Saeua is accluainted with V,S, She was alound ûre eleméntary school in the sunrnrer of 2008, working out ancl preparing f'or college track. He stated that V'S' seemed very comfortable with Mr' Montalvo during that time.l52

rilhen asked about phone call.s between Mr. Montalvo ancl students, Mr' Saeuz stafed that

there were phone calls betu,een his daughter and Mr. N4ontah,o, but not over 400 calls. He noted

fo call that, when he t¿lkecl lo Mr, lvlontalvo, the phone sornelimes got discÒrulected and they had each other back. Accorcling to Mr. Saenz, lvfr, Montalvo lived in an area whete the telephone

gets clisconnected fiequently. Mr. Saenz stated that so many phone calls seem excessive, but to

assess if there was impropriety, he would want to know what they were about.l53

Ofelía Guena and Catherine Rubin are Rio Grande City CISD employees who participated in two pfayer meetings organize

meets. Mr.. Guerra and Ms. Rubio stated that they observed V.S, interacting comfortably $''ith Mr, ltfontalvo,lsa

Rícardo A¡tahd is an employee of the Rio Grande Cit)' CISD w-ho worked ruith

Mr. Monralvo in 2007-2008. lr4r. Altahìf stated that Mr, þfontalvo said V'S, had mentionecl

r!0 Tr. at 672-623, See also Respondent's Exhibit l9' ttt Tr. at 623. tsz Tr. at (s2J-6)4. rrt' Tr. at 644-649. rr, -fhese ï'r.. al 689-?01. witnesses' rvritten statenrents are at Responclent's Exhibie l0 and 17.

MONTALVO V. SBEC 0042 soAI{ DOCKET NO. 701-lI-84ó8.DC PROPOSAL F'OR DECISION PAGE 34

suicide. About 30 days later, Mr. Montalvo said that he wa.s still talking to V.S., who continued to have problems, lvfr. l\ltahif told the school counselor about V.S. because, he said, thal is

protocol tvhen a student [a]ks about suicitle, although tlrere is no written rule to that ei'Tþct.lss ln a written starement, lvfr. Altahif spoke highly of Mr. Montalvo as a poach and educator,l5ó

Roel Gonzalez is the Superintendcnt of the CISD. He testified that Mt. Montalvo lvas on ¡1vo'years of paid administrative leave pending his criminal l¡ial, and upon his acquittal u'as reinstated as a reacher with the CISD. Mr. Gonzalez further stated that, if he heard that a tcachcr

had macle multiple phone calls to a student and allowed a studeni to use the Jacuzzi in the teacher's own master bath, there would be cause to initiate an iuúbstigatiott; hov,'ever, Mr. Oonzalezwent on to say that he would need to gather evidence and look at all the facts before cleoiding to take any action. Specifically as to the phone calls, he stated that it would be important to know what they were about, He^said.that not every mistake in teachJug is a matter for punitive action, and sornetimes a teacher just needs to be counseled to do something better the next time, Mr, Gonzalez said lhat it is protocol for an injured student athlete to be sent to the

trainer. He went on to say that, rvhile parents are part of the decision making team concerning lvhether to go to the trainer, they are not the sole deciders.l5T

d. Rio Grnnde City HS Students and Parents

X.A. graduatecl fiom Rio Grande City HS in 2007 and went on to college at the

Unìversity of Texas at San Antonio. Mr, lvlontalvo was her coach tluouglrout her public school career, starting in the first grade. He is also her godt'ather; she asked hirn to become her ls8 godfather for her Catholic confirmalion, when she was a sophomore in high school,

K,A. has known V.S. since middle school, and they were teammates on the lrack team. They were friends throughout school, zurd remained tiiends aller they both rvent to college,

r'5 Tr, ar 851¡-860. Mr. Altahif s test¡lnony suggested tbat Mr. ì\4outalvo said V,S. had talked about stlicide more than olrce, but it is not entirely clear. Rcspondent's Exhibit 7. r5ó Rcspondent'.s Exhibit 7. ts'" Tr. at 864-878. l'tt Tr. at 45l, 460.

MONTALVO V. SBEC 0043 PROPOSAL I'OR DECISION pÄcE 35 soAH DOCKET NO. 701-l l-84ó8.8C

Nonethetess, K.A. testified, she kept V.S. at a distancc rvith respect to trust because, in K.A,'s experience, V,S, was a liar. Further, said K.S,, V.S. had a reputation among others as a lia¡.15e

In a written stâtement, K.S, saicl:

V was never one to be trusted, She is a liar and a rnanipulator. She manipulated people into getting what she wanTed. She would lie and cheat her rÐay out of arry situation that meaut lrer not having to get in trouble or sufl'er the consequences f'or her actions. Ëor years I watched as she lied and manipulated her parents into thinking she rvas someone 'she nvasn't.!óo

Frequently, said K.4,, she talked on the phone with Mr. lvlontalvo, sometimes late into the night due to her schedule, She stated that she confided in him about her performance in track, problems in her fanrily, ancl things going on at school, and the convetsations ìasted hours, Hel parents were aware of the calls, she said. She stated that lvfr. Montalvo did not t¿ll< to her

about any problerns with his lvife, except to mention her concems that summer track took so much of bis time.16l

K,A. said that Mr. lvlontalvo sometimes massaged her injured hamstríng '*'hen no one

else was available. She saw hirn rubbing down other athletes, again if no one else was available to do it, K.A. saw Mr. Montalvo nrbbing down V.S. at a track meet, but not afler ptactice,ló2

In the summer of 2008, K.A. was training with Mr. Montalvo. She said that V,S. would still show up at track practices and weight room workouts, and slre came to a birthday pafly for

A.G. at Mr. Montalvo's house.r63

t5e Tr. at452-455. 160 Rcspontlent's Exbibit 6. rt'r Tr, at 466-4(17, 4i 5-4'1'1, 481 -4112. t61 1r. at 472-474. ró1 Tr. at 478-479.

MONTALVO V. SBEC 0044 soAH DocKET NO. 701-n-8468.8C PROPOSÀL FOR DECISION PÀGE 36

K.A, testifìed that, in the spring of 2009 (the year follorving graduation), V,S. was very troubled. had a boyfriend of whom her parents disapproved, and posted on Facebook that she \vas pregtant. V.S. did not lrave a child lronr the pregnancy she claimcd ât that time.l6a

According to K.A.'s l ritten statement, Mr. Montalvo is a ciuing, inspiring, gerrerous, arrd

trustworlhy coacb,165

Dína Peua líves in Rio Grande City, in tlre neighborhoocl where Mr. Montalvo lives, Ms. Penp regards Mr, Montalvo as a f iend, and he coached her two daughters in tmck, 'One of

her

acquainted with V-S. and her parents since V,S. ancl E,P. had participated in summer t¡ack in elemeutary school,t6T According to Ms, Pena, V.S. was not a very truthful p"tson,tut In a

wdtten statemeût, Ms. Pena said fhat Mr. Montalvo is a mentor to her riaughters and has their wholehearted trust.l6e

.E P. graduated from Rio Grancle City HS in 200S and has since graduated frotn the University of Texas at Austiu. She ran track in high school, and Mr. Montalvo has been her coach since she was in sevenilr grade. She stated that she has known V,S. since they were in elementary school, and knows her fairly well. They used to be friends, stated 8,P., bul the¡rhave had a fàlling out.lTo

tG 'lr. at460462. rt'r Respondent's Exhibit 6. roé Tr. at 4E6-488. 16? Tr. at 488. V.S. actually began sutruner track i¡ middle school lól Tr. at 489. r6e Respon

'"n Tr. at 51t-535.

MONTALVO V. SBEC 0045 soAH DOCKET NO. 701-ll-3468.8C PROPOSAL NOR DECISION PAGE 3?

\\¡hen asked about V,S,'s reputation for truthfulness, E,P. replied that V,S. "lies oonsistently."lTl E.P. also statecl that \¡.S, had askecl her t9 lie for her.l72 In a wriLl.en statenrcnt, IJ.P. saicl abor¡t V.S, that she "is a manipulative person and com¡rulsive liar,"l73

Concerning phone calls with Mr, Montalvo, E.P. stated that, as a freshtnan, she talked with him on the phone about three times per week, As she grew more confident in:her athletics, she spoke wilh him less, she said, but ar<¡un

late at night."l75

Il.P. said that if V.S. was injured, there was no cloubt in E.P.'s mind that Mr. lVlontalvo would tell V,S. to go to the trainer. Further, agreed E.P., Mr. Montalvo would not tolerate a

refusal to go to the frainer.tT6

E.P. sometimes saw Mr, Montalvo massage V,S. during practice. Also, said E.P., sometinres V.S, rvould be arou¡tcl after practice,lTT

With respect to stretching, E.P. testified that lvlr, Montalvo stretched her by having her place her back against a wall, immediately adjacent to a cloorway, and he woulcl move her leg up, past her bocly, and into the ofen doorrvay, She stated that she was very tlexible. ærd no one else

was strong enough to stretch hcr adequately. She further saicl her mother was sometimes present 178 fbr the stretclring.

r?t Tr, at 53(¡-537. L"2 Tr. st 544.

'?1 Respondent's Exhibit 13,. t1a'i'r,at537. r?s 'l'r. at 569.

'tu '|r. ot 5?3, 594-i95. lt? Tr. at 556-587.

'i^ Tr. at 550-55 t, 579-5S0,

MONTALVO V. SBEC 0046 .so^H DOCKET NO. 70r-ll-8468.DC PROPOSAL FOR DDCISION PAGE 38

of 2008, Mr, Montalvo talked to E.P. about V.S.'s E.P. testifìed that, in"the spring possibly doing something to hurt herself. E,P. and V.S. had been good friends, and Mr. Montalvo was trying to detcrmine if, in E.P,'s words, this was'Just to get more attentl'on."179

E,P. told lr4r. Montalvo that she thought any suicide threat by V.S. was false.r80

E,P, stated that she sfiw no change in V.S.'s demeanor towatd Mr. Montalvo in their senior year,lsl Further, she stated, after graduation V.S. came to a birthday celebration Jlor A.G.

and asked Mr, Montalvo why he harl not thrown a party for her birthday.rE2

E.p. said that Mr. Montalvo was like a father figure to her, aud he never did anything to break her trust in him.l83 She described him as an "exceptional educator and human being" who

taught discipline and perseverance and rvas a posifive influence in her life.lsa

A.G. rwt frack at Rio Grande City HS, from rvhich she graduated in 2007. She still lives in Rio Grande City, and works at a stadium in the area.l85

. A.G. restified that she has knólvn V.S. since A,G, was a freshman in high school and V'S' was in the eighth grade. She said that V.S. was a friend. According to 4.G., V.S. was not known for being honest.ls6 A,G. further asserled, in a written statement, that V.S' had asked her to lie tbr her.r87

.r '' i,. ., r7e Tr, at 56'l-569.

'80 'Il. at 570. rEr Tr, at 552. rH2 Tr. at 558, rEî Tr. at 538, r8a Respondent's Exhjbit l3¡, r55 'l'r. aI 604-605. t6t' Ii'. ar 605-606,610. r87 Respontlertt's Exl¡¡bit 15,

MONTALVO V. SBEC 0047 so^H DocKET NO. 70r-il-8468.8C PROPOSAL FOR DECISION PÀGß 39

In June 2008. said Ä.G., her father was sick, so Mr. Montalvo threw a little dinner party for her birthday. A,G. state

During that same summer, said 4,G., V.S, was around, working out in the presence of Mr. lvlontalvo, ancl she clisplayecl no fear of him,tse

IJaldemar Gørza is an attomey in Rio Grande City. He is a friend of Mr. Montalvo, and Mr. Montalvo coached and trained Mr. Garza's son, who went on to run track at

Cornell University. lr4¡, Garza also consulted with Mr, Montalvo about his criminal ca$e.leo

Ivb, Garza testified that he has seen V,S. intel'act with Mr. Ivlontalvo on many occasions, including during the summe¡ of 2008, and that she behaved notmally'rer

¡¿¡r. Garza said that he is aware Mr, Montalvo rubbed down athletes, inclucling female athletes. Mr. Garza saw nothing inappropriate about the plactice.re2 As to the phone calls between Mr. Morfalvo and V.S., rVr. Garza noted that his wife is a teachet, and he said that teachers often e.nd up listening to kids' problems because their needs âre not met at home,l93 He

also suggested. that his son did not always reveal injuries to him because he wanted to compete, a¡d goocl arhletes sometimes do tJrat.,lea Frrther, when asked about sfudents using

lvfu. Montnlvo's Jacuzzi, Mr. Garza noted that Mr. lvlontalvo had asked him to make the pool at Mr. Garza's home available to injurecl stuclent athletes from tirne to time.les He stated that he

believes Nlr. Montalvo is a declicated anct caring coach'l'6

ffi: r6E Tr. at 609-610, tte Tr. at 614.

''o Tr, ot 651-653. 't' Tr. at 654-656, te2 Tr, at 656, t"3 Tr. al 661, re4 'li. at 661. tet Tr. aL 662.

''o 11.,ut657. Awrinenst¿ìtemùntof lvlr.Garza'sisatResponclent'sExhil¡itl4.

MONTALVO V. SBEC 0048 soAH DocKET NO, 701-ll-8468.8C PROPOSAL F'OR DECISION PAGE {O

K,T. is a stuclent at the Universify of Texas at Kingsville, where she runs track. K,T' has

known Mr. Montalvo ibr six years, starting with b.is being her coach in summer track, then ber high .school coach. She graduated f¡om Rio Graqde City HS in 2010 and was â teammate of V.S.

for t*,o years, K.T. said that she and V,S. we¡e close friencls in K,T.'s sophotnore yeat'te?

K,T. testified that V,S. was "clingy" with lr4r. N4ontalvo, and her belravior toward him did trot change duri¡g the time K.T. was arou¡d them, iucluding the spring and sttmrner of 2008.re8 K.T. said that, at the time of the Mission track meet in the spring of 2009, V.S, came and wanted to ride with the team o¡r the bus, but could not because she was not part of the school, At the meet, saicl K.T., V.S. v,as jumping on Mr. Montalvo's back.l99

K.T. rec¿¡lled the state meet of 2008in Austin, forwhjch she was the only Rio Grancle City female. track athlete to qualify. She said that V,S. ancl E,L, went along, too, because lhey

were the athletes who had worked hardest at practice that year. According to K'T', lr4r. Montalvo calle

a father rvould give. She said there was nothing inappropriate about the interaction. She esrimated she was with hjriLfor about 30 minutes, and it

were with him lbr any longer.2oo

When asked about her opinion concerning whether V.S. is a truthful person, K.T. replied, ',I horrestly thi¡k that she rvould do anything to get what she wants." Referring to lying, K.'I. said V.S. "kno\ils that she can get away rvith it with her parents and anybody else."20l

re? Tr. at 668-669. Coach Lu testit-red that K.T. and \¡.S. dicl nor ahvays like each other. li. at 5l l-532. Àccording {o K.T., she had a falling out with V,S. afle¡ a traffic accidenl Ín rvhich V,S. was a driver rurd K'T. was hcr passci-e"r. f.i'. res¡tÌe¿ rhat V-,S. inappropriately tried to place all the blame on the driver of anotlrer car, ætd ¡¡cn V.S.'s* mothcr urgecl them lo sue for no reason. K.' - said thís incident pusbed her away fì'om V.S' and V'S.'s fanrily. 'fr. aI 6'76-677. ie6 'lr. at ó70.

'ee Tr. at 6'10-6't l. 2(Ã Tr. al 67 -1-676,680-652. ?ot Tr.at67i-

MONTALVO V. SBEC 0049 soAH DOCKET NO. 701-l l-8468.8C PIìOPOSAL FOR DBCISION PAGE 4I

K.T. was at the Donna meet, near V.S., when V.S, injured her hamstring. K.T' stated that the coaches told V,S, to go to the trainer, and she went'202

I(.S. is a student in high school and the daughter of Ricar

she knows V,S. from sulnmer track in years past, but they \ryere never high school track

teanmates. K.S. state.d that, when she was in niddle school, she worked out with tlre high school athletes, and she .saw V.S. around Mr. lvfontalvo in 2008, including that summer. K.S. said that V.S. r'vas outspoken and friendly with lr4r- N4ontalvo'2o3

As to V,S.'s reputation for truthfulness, K.S, stated that she always heard people saying that V,S. was not avery truthful person'2oa

In a written statement, K.S. said, "I have attended many tmck meets all around the United States under [vlr. lvlontalvo's] care and not once has he disrespected me in any way.,,I believe

Coach Montalvo is a good and decent.man who is genuinely respectful and profèssional rvith his athletes."2o5

A.B, is a l/-year-old student who was coaohed by Mr. Montalvo for about otre year in high school, A.B saicl that she is acquainted with V.S., having met her a couple of times during joined trâcl( season. They were not, however, teammates; V.S, hacl graduotecl by the time A.B. the track teanl,zoó

A,B, testified that V.S, has a reputation in the commnnity for dishonesty.20T A.B. also testìfied that, during plactices in the surrnrer ol 2008, V.S, "alwa)'s tried to get [lvlr' Monlalvo's.l

202 Tr. at 678-6'79. 201 Tr. ¡t7ll-'113. 2o't Tr, at714. tor Respondenl's Exhibit I 8,

'nu Tr. at719-720, 201 'I'r. aÍ 721 .

MONTALVO V. SBEC 0050 soAH DOCKET NO. 701-ll-8468.8C PROPOSAL FOR DECISION PAGE 42

attention and distract him rvhile he rvas trying to coach the track team."208 Further, said 4,8,, at the 2009 Mission track meet, V.S. wanted to ride on tjre bus, but Mr. Montalvo lold her she

could r¡ot. A.B. stated that, at that meet, V.S. "would try to get [Mr, Montalvo's] attention while

he was coaching me

A.B, ,said that Mr. Montalvo was never inappropriate with team members or V.S., did not slap girls on the backside, and was a good coach.2to In a written statement, she saitl, "While being coached by Mr. Erasmo Monlalvo in 2008 through 2009 ho has shown nothing but total respect torvards me.. . and my Leam mates,"2ll

6, Other Evidencc

In eviclence are copies of several greeting cards Mr. Montalvo sent to V.S. On the cards, Mr. Montalvo wrote notes repeatedly exhorting V,S. to work hard, stay çlose to her parents,

follow her tlreams, ancl remain focused.2lz

Atso in evidence is a DVD recording, as well as a transcript, of the local television interview with Mr. Montalvo and V.S. about her scholarship.2i3 In the interview, V.S. appears happy and excited, and seelns cor¡f'oflable in Mr. Montalvo's presence.

Police recorcls associatecl with the investigation of sexual. assault ale in evidence,2'4 In addition, Stal'f iutroduced a staternerrt by the Stâte's Advisor.v Iloard of Athletic'l'rainers about

2oa Tr. aL 721 .

too Tt. ut 721-723. )to Tr. at 723. 2lr Responden¡'s Exhibít 8. tt' Sta¡¡ s Erhibit -5. V.S. testifiecl that Mr. Montalvo gave bilthcla,v ancl Valcntine's cârds 10 all the gít'ls on the team, Tr'. at 44-45. 2rx Respondent's llxhibits 23 and24. 2ra Respondeni's Dxhibits 21, 25-27,

MONTALVO V. SBEC 0051 soAH DOCKET NO. 701-ll'8468,nC PROPOSAL FOR DECISION P¡\GE 43

the role of licensecl athletic trainerszls and University Interscholastic League acknolvledgement fornrs signed by Mr. Montalvo,2l6

E. ALJ's Analysis

1. Witness Credibility

The evidence of tbe central allegalions in úis case - of sextnl impropriety and assault - consists almosf exclusively of the statements of the two persons involved, Studed 1 and

Mr. Montalvo, Therefore, their general credibility must be assessed.

Âs to V.S.'s credibility, lvlr. Montalvo makes a number of arguments. First, he argues that she is not credible because she was rvidely reported to have behaved normally around Mr. Montalvo, even seeking out his company and attention, during ancl after the time of the alleged sexual abuse, arrd she appeared excited and happy in a video filmed with him shortly after the alleged sexual abuse occurred.

Second, Mr, Montalvo points to V,S.'s inconsistent s(atements concerning tJre number of times she rvas sexually penetrated by Mr. Montalvo. I¡ her interview with the.Child Advocacy

Center. she stated that the she was rapecl only once, in the fielcl house, and that the incident at

Mr. lr4ontalyo's house involved oral sexual contact only. In her testimony at the hearing, ho$;ever, she was clea¡ that she had been penetrated on both r¡ccasions. In additiott, V.S. was inconsistent in her clescriptions of how Mr. Montalvo allegedly ol't'ered to pay her 1i2,000 in exchange for sex. [n her Child Advocacy Center interuiew, she stnted that Mr. Montalvo told her

he had hear

t't stafl's Exhíbit 6, 2r6 Slaff's Exhihìt 8-

MONTALVO V. SBEC 0052 so^H DocKET NO. ?01 -l I -8468.8C PROPOSAL FOR DXCISION PAGE 14

F'inally, lvlr. Montalvo argues that V,S,'s credibility is impugned by testimony in the

record about her lack of tn¡thfrllness.

The ALJ does not lin{ Mr. lvfontalvo's first and second argur.nents about V.S.'s

credibility convincing, Ms. Garza-Louis testifìed persuasively that sexual abuse victims often exhibit a pattern of normal behavior around their abusers for appearances' sake and to try to

coffect the harmful situation. The ALJ gives no weight to the argument that V.S.'s normal and even exuberant demeanor in Mr. Montalvo's presence, well before her outcry and while V.S.'s world stifl revolved arouncl the high school track team, in any way makes her accqsations less

likely to be true.2l7 Nor is the ALJ persuaded that the noted inconsistencies in V,S.'s story diminish her general believability, Again, Ms, Garza-Louis teslified convincingly that the stories of actual sexual abuse victirns often change over tinìe, and these changes may reflect clisassociation and an {tempt by the victjm to diminish the magnitude of the experience. V,S.'s inconsistency about tl:e number of times she was rapeð does not, therefore, indicate that she is not telling the truth, And tlie ALJ does not find her conflicting vetsions of. the alleged sex-fbr-

money discussion significant enough to cast general doubt on her credibility,

Éloweve.r, the ALJ is troublecl by the considerable testirnony in the recorcl about V.S,'s ovcmll propensity for dishonesty. Witness after wilness - including several teammates who had known V,S. for yeal's, ¿rs well as an assistant coach - offered testimony that V.S. is dishonest or has a reputation for being trntrustworthy. Many of thesewitnesses spoke in unequivocal terms about V.S,'s tendency to lie, Coach Lu stated that V.S, ìs untrusfworlhy and her slories change. K.A. called her a "liâr" and "manipulator" who "was never one to be trusted," E.P. said that V,S. "lies consistently," has askecl E.P, to lie for hel, zurd "is a mattipulative person atd compulsive lia:'." A,G, stated that V.S. was not known for being honest, and had asked A,G. to lie for her. K.1',, when asked about V,S.'s trtrthñllness, .stated, "l honestly think that she woulcl.

do anything to get what she wants," K.T. stated baldly that \¡,S. knows she can get away rvjth

2r? Olr the otlrel han

MONTALVO V. SBEC 0053 so1\H DoCKET No. 701-l l-8468.EC PROPOSAL FOR DECISION PAGE'15

lying. Ms, Dina Pena said v.s. is not a very truthful person. K,s. and A.B, stated that V.s, had

a reputation for lack of l.:'uthftrlness.

Staff invites the ALJ and the Board to dismiss this notable body of testimony as coming fìom persons who ^'would naturally be biased in favor of their beloved coach."2l8 This clairn has no basis in the recorcl,2le On the contrary, the testimony of a nu¡nber of the young athletes indicates that any "bias" on their part arose out of their direct experiences rvith a coach who

treated them with re.spest and with a young l¡i/onan who lied and asked some of them to lie for her. The chorus of voices casting doubt on V.S,'s credibility wâs colroborated by V.S.'s own aclmissions tbat she has lied about important matters, falsely telling the police that she was kiclnapped and falsely telling family and friencls that she rvas pregnant, on both occasions to manipulate, and to gain attention and syrnpathy, from someone in her personal life,

'Ihere is no similar evidence generally calling into question Mr. Montalvo's veracity,

r\ny inconsistenoies in hù testirnonlto do not rise to the level of casting overall doubt on his credibility.

2. Sexual Impropriefy and Åssault

Staff alleges; and \¡.S. testified, that Mr. Montalvo touched her inappropriately on rnultiple bccasions, sexually penetrating her on at least one occasion,

V,S. tells a plausible story. Her assertions - that Mr. Montalvo massaged her frequently

and in private, that his massages gradually became sexual, that he used his position of authority and trust to gain power over her alrd her family, and that he actu,ally raped her - certainly could

be true. lvfs, Garza-Louis charactedzed V.S.'s accoLmt as believable, noting that these events, as

2t* Petitioner's Response to ResponrJent's Closing Argument at I' tln ltr the sante pal'agraph. Staff groundlossly speculatcs that the jury that noquitted Mr. Mt¡nlalvo was

biased. Itl. t2o Fo¡ exaurple. Mr. lvlolrtalvo ntade varvirrg slatenents about rvhether he told V.S. to go to the trainer (despite what Mr. Montalvo chalactel iiæd as Mr. Sancllez's refusal to allow he.r to go).

MONTALVO V. SBEC 0054 soAH DOCKET NO. 701-lI-8468.Dc PROPOSAL FOR DECISION PAGtr 46

describecl by V.S,, follow recognized patterns of sexual abuse, The ALJ âgrees that, if considerecl in a vaouum, V.S.'s testimony rvould be extretnely convinciug.

However, whether something couldbe tlue is a different matter fro¡n v'hether it is true, The inquiry into whether V.S.'s story is accurate canuot occur in â vâcüum¡ but must take illto account the entirety of the evidence in this case. The evidence inclucles two very important

far:tors. First, IvIr. Montalvo, who testified at length in this hearing, denies Xhese accusations,

' He, too, tells a plausible story - that of a hardworking coach trying to help a troubled, emotionally needy athlete deal with depression, overcome her anxieties, and be successful ín

high school ancl beyond. Second, there is the considerable evidence (discussed above) calling into question V,S,'s creclibility as a wifness. Mr. Montalvo's denials and V,S.'s problematic relationship rvith truth do not necessarily mean V.S.'s accusations in this case are false,

Respected coaches can abuse their power a¡rd cover up their rnisdeeds, and dislionest people can be victims of heinous acts. Flowever, Søff has the burden of proving its allegations by a

preponderance of the evidence. The general plausibility of Mr. Montalvo's version of events and

the evidence casting doubt on V,S,'s credibility hightight the need for evidence corroborating V.S.'s assertions.

Such corroborative evidence is scant. Staff asserts that the mmy phone calls betrveen Mr. Mo¡rtalvo and V.S, constitute corroborative eviclense of the sexual abuse. I'here is, however, absolutcly no evidence that the calls related to a romantic or sexual relationship or solicitation between them.22l

Staff also places much reliance on the testinrony of Ms, Garza-Louis that V,S.'s story is believable. As clissussed above, the ALJ has found Ms. Garza-Louis's testimony effective in rebutting r\4r. Montalvo's argurnents that V,S. should not be believed because of her ciemeanor toward Mr. Montalvo and cel'tain inconsistencies in her stor¡'. Howevct', Ms. Garza-Louis is in a

pool position to otT'er a nreaningtirl view concerning the ultimate facts in this case: whether the allcgcd acts actually occur¡ed or not, She is a couñseìor and has knorvledge about behavioral

"' Tlle only evidence of any ínappro¡rriate content was V.S.'s testimony fhnt lv4r. Ilontalvo sornetirnes raike{ atrout proìrlents rvitJt his wife (includitrg sext¡al plol:lenrs), a claint Mr. \'lontalvo denies, V.S. tesLified that rnuch of the talk on the phone wa-* about tl'ack.

MONTALVO V. SBEC 0055 so^H DocKET NO. 70r-lr-8468.8C PROPOSAL FOR DECISTON PAGE 47

patterns in sexual abuse situations; she \\as not shown to be an expert in general credibilit-v or

sorting out disputed fncts. She has no direct knowledge of the events at issue. She has met none of the persons involved, Sbe watched the DVD of V.S.'s interview at the Child Aclvocacy Center, but Ms. Garza-Louis did not listen to any of the testimony in this case. She did not hear

V.S. or Mr. Montalvo testify. There is nothing in the recorcl to indicate that she is farnilia¡ with Mr. Montalvois detailed version of events, She clicl not hear the testimony of any of the many withesses who raised serious concerns about V,S''s dishonesty'

The most direct corroboratiye eviclence of V,S.'s accusations of sexual abuse came from V.S.'s mother. Ms. Sa¡chez testified that V,S. was upset ancl crying upon retumirrg from Mr. Montalvó's Jaouzzi oue day. She fulther testified that V.S. \Ã,as vety late coming home one night, and, when Ms. Sanchez called Mr. Montalvo, she could hear V,S, crying ín the

background. Ms. Sanchez also testified that V.S. did not want Mr, Montalvo to accompany the fagrily to Corpus Christi to talk to college personnel about the terms of the scholarship. This testimony tends to sorroborate V.S.'s accusations. On the occasions when V.S' was crying, Ms, Sanchez was tolcl that it was because V.S. rvas upset about her injwy. This is certainly a

possible explanation for her tears on the late-night occasion. It seems less plausible affer the :

Jacuzz.í visit, as Mr, Montalvo testjtìed that V,S,'s leg felt better afler using the Jacuzzl Howevor, the ALJ has concerns about the accuracy of Ms, Sancbez's recollections. Ms. Sanchez testifred that she had no menÌory of a dramatic event described by bottr V.S, arrd her father, in which V.S. told ber mother in the summer of 2008 that Mr. Montalvo had touched her, and

Ms. Sanchez called her husband home, rvheteupon he got out a gun to use against Mr. Montalvo.

Ms, Sanchez's corïoborative teslimony, theref'ore, r.vhile troubling, does not add enortgh to Staff s evidence to meet its burden of proof on the allegations of sexual abttse.

No wítness corroborated V.S.'s statement that she received multiple daily massages from Mr. Montalvo. No one claimed to, rrpon leaving school, notice V.S. and Mr. Montalvo lìnget'ing alone togetfier after practices. No teammate agreed rvith V.S. tbat Mr. Molrtalvo kept her alone

with him in the hotel loom at the ,statc meet for more than thc shon time everyone else was rvith him. There is no physical evidence of sexual oontact in lhis case, äs cxists in some rape or

sexual aþuse cases. Mr. Montalvo aclnlitted to giving V.S, occasional ricles ho¡ne altcr track

MONTALVO V. SBEC 0056 soÀH DocKET NO. ?01-l1,8468.8C PROPOSAL FOR DECISION PÄGE 48

meets, but there were only seven track meets after the alleged abuse started, and V.S. saicl that the inappropriate touching occunecl 50 or more tirnes.222 Conflictirrg evidence about whether lr4r. Montalvo slapped girls on the backside cloes not makc it more likely that he sexually abusecl

V,S. Nor does eviclence that some people did not like the look of his stretqhing the athletes, That Mr. Montalvo rubbed down athletes also proves nothing, aspecially given that, at the time, the district had no policy against it, 'Ihe ALJ cannot see any connection between V,S.'s allegations of scxual misråahrent ancl Mr.lvfonlalvo's giving hjs athtetes greoting cards with inspilational messages and costume jewelry rnade by his sister. Mr, Montah'o's poor judgtnent in allowing athletes to use the Jacuzzi in his master bath does not establish that he assaulted V,S. when she lvas in his horne.

For the above reasons, lhis lecord does not support a finding that Mr. lvlontalvo touchäd Sfudent I inappropriately, engaged in romantic or sexual conduct with her, or physiÖally

misl¡eated or abuse.cl her in violation of Code of Ethics Standards 3,2,3.5, and 3,6,

3. Telling V.S, Not to Go to the Traincr

It is undisputed that V.S. did not see the lrainer for her hamstring injury, It is also undisputed that district protocol rcquired injured students be referred to the trainer, Staf[.alleges tbat i\4r.lrlontalvo told V.S. that if she infornred the athletic. trainer sbe was injurecl. the lrainer

would not let her run in the district and regional track tneets. This is the only allegation in the pleading concerning the trainer. While, sulely, a coach's making such a factual àssertion could not by itself be a sanctionable everrt, StafÏ--s allegation implies that lvlr. lr4ontalvo actually

prohibited V,S. fiom sceing thc trainer or urged her not to go. The ALJ interprets the plcading to mean that N4r. Montalvo actively discoulaged V.S. from going t

Staff s main assertion seems to be lhat Mr. Montalvo was dominating V.S. a:rd grooming her for sexual abuse by contlolling her rehabilitation, placing himself in the caretaker role, atcl providing himself rvifh a rcady cxcusc to cngagc in physical contact with V,S. As

ttt lt js tìot even clear to rhe ALJ that V.S. as.rerted arrylhing impropcrhappcned on thc ridcs honle. Whcn aske,:l Chihl Advocacy Center intelvicw whele thc- abuse occtuted, she r:eplied that il occun'ed at school and a1 in heL Mr. Montaivo's hol¡le,

MONTALVO V. SBEC 0057 so,{H DocKET NO. 701-il-8468,8C PROPOSAL FOR DECISION PAGE 49

above, there is insufficient evidence in the record to support the allegatious of sexual abuse. However, Stafï also seems to argue that plohibiting or discoulaging V,S, from going to the trainer, cven without any scxual overtone.\, harmed her by clenying her the proper treatnrent for her injury. Aside from grooming for sexual abuse, there was another l'eason rvhy a coach would

not want a trainer to require V.S, to sit out flom the district meet. V.S, wäs a star athlete,. ald the

team neecled V.S, to compete in 2008 in order to win the district charàpionship.223 If Mr. Montalvo prevented V.S, from seeing the trainer for her injury, he may have violated Standard 3.2,by knowingly treating a student in a rnanner that advetsely affccted the student's learning, physical health, mental health, or safety. Or, Mr. lvlontalvo miglrt have violated Standard 3,5, by intentionally, knowingly, or recklessly engagirrg in neglect of a student or minor,

V.S. testified that Mr. Monølvo told thern the trainer rnight keep V.S. fiom participating in the di.strict meet, and her failure to run could jeôpardize hcr scholarship. FIer palents bolh echoe.d that testimony, V.S, and her father testified that V.S.'s mother took her to Mexico for shots. Mr. Sanchez said the shots were Mr. Montalvo's idea. V,S. said she never saw a doc-tor for her injury, ln contrast, lt4r. I\4ontalvo repeatedly testified that he told V.S,'s farnily he would prefer that she go to the trainer, but that Mr. Sanchez adamantly said he would "take care of it," and woulcl take V,S. to a doctor. According to Mr.Ivlontalvo, V.S. and het parents refused to involve the trainer. IIe varyingly said that he tolcl V.S. to go to the trainer, that he did not do so

bnt should have, and that he coulcl nol recall what he told her.224 Mr.lvfontalvo sajd be rvas

under the irnpression that V,S, was seeing a doctor in lvlexico.

This js a diffic,ult faotual issue, as there is potentially persuasive evidence on both sides. V.S. and her palents ail testified ihat tr¿r. lvlontalvo did not want V.S. to go to the trainer, telling them that her scholarship might be laken arvay. Their vcrsions of events \ryere consistent. However, as tlisctnsetl above, there are concerns about the accuracy and credibility of the testimony of V.S. ancl her mother. Further, the AL.J is unpersuacled by V,S,'s ancl her parents'

"t Tr', at 4og. ""' Mr'. Montalvo's lestimony lhat hc dicl not send V.S. to thc trainer but should have scnt done so could rnean, as his argurnenI sußgcsts, that he.should hat,e insisled sbe see the trainer, despite her family's refitsal. See Respondent's Post-Heuring Rr:ply Brielat 7.

MONTALVO V. SBEC 0058 soAH DOCKET NO. 70r-r 1-8468.8C PROPOSAL FOR DI,CISION PAGE 50

assertions, and Staft's argr¡ment, that the family trustecl lVlr. Montalvo to thc degree that they followed whatever aclvice he gave thern about V.S.'s track career, It is undisputed that V,S., as a

freshman, had a cardiac condition perceived as dangerous ancl possibly lif'e+lueatenilrg, ancl that both her doctor and lvfr. Montalvo advised V,S,'s parcnts not io let her run. Nonetheless, they allowed her to run, Tlris uncontrovertecl fact strongly supports Mr. Montalvo's contention that V.S,'s parents rÐ-ere "extreme" about her lrack career and lends credibility to Mr. Montalvo's Mr. Sanchez insisted he would "take care of' his daughter's injury himself. assertion that Fufher, Coach Lu testifred that she (and Mr. lvfontalvo) tokl V.S. to go to the trainer. In adclition, given that V,S. was going to Mexico for shots, it is plausible that Mr. Montalvo believed sbe was undçr medical care for her injury, Coach Lu testified that V,S. told her she saw a cloctor in Mexico for her injury. Mr. Meguire testif'led that parents do not have to agree to let their clúlcl go to the trainer, ancl can instead decidc to take a chilcl to the doctrii to Mexico for shots, or to do nothing at all in connection with an injury,

\\¡hen tüe evidence o¡r a factrral issue is this confusing and close, there is essentially a tie, and the party witlt the burden of proof loses. Accordingly, the ALJ determines that StafT has failed to prove Mr. Montalvo told V.S. not to go to the trainer for her ha:nstring injury. Tîerefore, no violation of Cocle of Ethjcs Standard 3,2 or 3,5 was sìrowr.225

4, Tclephone Calls

A coaclr's talking to a studcnt by telephone 480 times over frve months is certainly a matter to trigger concem. IJorvever, for the phone calls to violate the cited llrovisions of the Code of Ethics, they must have constitutecl knowing trealment of a student in a mamer that acìversely afïected thc studcnt's learning, physical health, mental health, or safety; physical mistreatment, neglect, or abuse of the student; or soliciting or engaging in sexual concluct or a romarrtio relatiorrship witb a stndent. Nonc of these. r.vas shown.

225 To prove a violation ol Srantlald 3.2, Stâfl vt,oulcl lrnve to show that V,S. was hamred, To ¡rrove a violationofStandard3.5,StaffwouldlavetoshorvthatMr.Montalvo'sactionsconstitutedrreglect. TheALJdoes nol reach these questions because jt lvas not shown that Mr. lvlontalvo prevented V.S. fi-om going to the rrainer, as alleged.

MONTALVO V. SBEC 0059 soAH DOCKET NO. 70r-rr-8468.EC PROPOS.AL FOR DECISION PA.GE 51

Mr, Ramirez, Mr. Saenz, and Mr, Gonzalez all testified that the content of numerous phone calls r.vith a student wouJd be an irnportant factor irr determining if there had been impropriety, It is undisputed that rnost of the telephone conversations betlveen Mr. lvlontalvo and V.S. were about track. Mr, Montalvo stated that V.S, required constant atl.ention and reinforcement and had to "hear it and hear it and hear it" so that she could believe in herseltì226

V.S.'s statement that Mr. Montalvo often repeated himself when talking to her conesponcls witlr Mr. Montalvo's description of these interactions, Despite V.S,'s denial tlut she ever mentioned suicide to Mr, Montalvo. Mr, Montalvo's tcstimony that he spent so much time talking to V.S. in parl because she had spoken of suicide is quite believable, Ms, Lu, N,fr. Altahif, and E.P, all testified that Mr. lvlontalvo reported to them at the time that he was concemecl aboul V,S. because she had mentioned suicidc. Further, V.S. was dealing with an injury that impailed her performance in her senior year, and the spike in the number of calls coiucided with the time of her injury. That V.S.'s enotional issues were related to her injur,v and track performance made

them a legitimate subject of conversation betrveen V.S, and her coach. And, there is testimony frott other athletes that Mr. Montalvo's coachiqg involved talking to them by phone, too, and sometimes late at night.

There is no evidenoe that the phone calls with V,S, involved statements of love, affection,

or attraction. The only evidence of improper content of the conversalions is V,S.'s testimony that Mr, Montalvo sometimes spoke of having problems with his wif'e, "saying that they did not have sex, Mr, Montalvo denies sayirtg anything to that effect. While such rematks, if made to a student, have beetr extremely inappropriate, they would not have adversely aft'ected V.S.'s "vould '* The rrpetitious tenor of the greetiug cards in el,idence is consistent with Mr. r\lontalvo's testimony about the phone calls. For example, one note on a card Êom 2006 reads:

I V,, aru extr-ernely prourl ol your accomplish¡nents this past weekend...You make coaching fun & easy!...Stay rvith the same att¡tudÈ & rvork ethic not only in sports but il¡ life in genetal, an

St¡¡ffs Exhibit 5 (emphasis in orighal). As noted above, V,S- lestified that Ml', Morrtalvo gave cards to all the girls on Íhe teâ,n,'I'r. at 44-15.

MONTALVO V. SBEC 0060 soAH DocKET NO. 70r-r f -8468,8C PROPOSÄL FOR DECISION PAGE 52

physical or mental health, constituted mistreatnrent or neglect, or by themselves amounted to solicitation or engagenrent in a sexual or romantic relationship. Nor would such remeu'ks, by

thetnselves, have indicated that Mr. Mont¡lvo is rmworthy to instruct or supervise youth. It would have been wise for M¡. I\,fontalvo to have referred V.S, to a counselor instead of trying to addrcss her needs himself, but that is a different rnatter, and one not pled in this case.

Mr. Montalvo's telephone calls u,ith V.S, did not violate the cited Code of Ethics provisions and

should not subject him to sanction.

5. Student Use of Mr.lVlontalvo's Jacuzzi

It is undisputed tbat Mr. Montalvo allowed students, including V.S,, to use his Jacuzzi, \\¡hile there is insuffiçient evidence to suppoÍ a determination that Mr. Montalvo sexuall¡r assaulted V.S. while she was in his home to use the Jacuzzi, lr4¡- Montalvo unquestionably exetcised bad judgment in opening his master bath to silrdents, ancl especially to one female student alone - even if Mr. Montalvo's wife was at home at the time, Ftrowever, such a poor decision did not violate the cited Code of Ethics provisions by aclversely affecting students, rnistreating or neglecting thern, or constituting solicitation or engagenent in a sexual or romantic relationship, Nor did this qnestionable decision, by itself mean that Mr. Mo¡rtalvo is unrvorthy to instruct or supervise youth.

6. Summary and Recommendation

Staff has not ptoven its allegations by a preponderance of the evidence. Theref'ore, the ALJ recomn:encts no sanction in this case.

III. FINDINGS OF'F'ACT

Erasmo lvlontalvo, J¡., holds a Texas Educator Certificate issued by the State Board for Educator Certification (SBEC). The cemificate \l'as in frrll f'orce and et'l'ect at all tirnes nraterial and relevant to this action.

2 On August 4,2011, the staff (StafÐ of the Texas Eclucalion Agency (TEA) Eclucator Ce¡Lification and Standards Division, on behalf of SBEC, sent a notice ol'hearing and

MONTALVO V. SBEC 0061 soAH DOCKEI' NO. 701-l r-8468.È,C PROPOSAL FOR DN,CÍSION PAGE 53

original petition to Mr. Montalvo proposing revocation of the certifìcate refer¡ed to in Finding of FactNo. L

J.,. 'lbe notice of hearing contailted a statement of the tinre, place, and natule of the lrearing; a statement of the legal authority and jurisdiction under which the hearing vv'as to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.

4., Tìre hearirg was held .lanuary L)-12, 2012, before ALJ Sha¡non Kilgore at the State Office of Adrninistrative Hearings (SOAI'I) in the William P. Clements Building, 300West l5th Street, Fourth Floor, Austin, Texas, Staffwas represented by attorneys Richard J. Ybalra and lvferle Hoflìran I)over. Mr. Montalvo appeared and was represented by attorneys Maft Robinett and Corey Tanner, The record closed on Marclr 9,2012, with the parties' submission of reply briefs.

5, In 2008, Mr. Montalvo wa.s a track and fielcl ooach at the Rio Grande City High School (HS), part of the No Grande City Consolidatecl Inclependent School District (CISD), He was also the physical education coach at a CISD elementary school.

6" That same year, student I (also referred to as "v.s,"), a t'emale senior under the age of 1B, was ou the lrigh scbool track teanl coached by Mr. Montalvo.

7. Student I attended a track meet in Donna on March l, 2008.

8, While at the Donna meet, V.S. met with a college recruiter and was offered a track ând f,ield schola¡ship to attend college in Coqlus Cbristi the l'ollowing year,

9^, V,S. injured her hamstring at the Donna track meet and did not compete,

l0 V.S, was a star athlete in her senior year, aud the hamstring irUury early in the season rvas an emotional blow to her,

I 1,' District protocol required that injured students be sent to the trainer.

12. Assistant Coach l-inda l"u rolcl V.S. to go to the trajner.

13. Parents of injured atbletes do not have to agree to let their children go to the trainer.

14. V,S. did not visit the trainer about her injury;

15. \¡.S,'s rnother took V.S. to Mexico for shots to treat- her injury.

16. llere is jnsut'ficient evidence to support a finding that Mr, Montalvo prevented or cliscouraged V,S. from going to the trainer for her injury.

MONTALVO V. SBEC 0062 sollH DocKET NO. 70r-t t-8468,8C PROPOSAL FOR DECISION PAGE 54

17 Mr. Ivfontaìvo did not allow V.S. to compete in the next th¡ee meets follorving the Donna rneef:,

I 8,, Iollowing her injury, V,S, underwent stretching, nrb downs, ice baths, and whirlpool use under Mr, Montalvo's direction.

19. V.S. gradually began to work out following her iqjury, and resumed competing in early April2008.

20, N4r. Mont¿rlvo gâve V,S., ancl othe¡ students, rub downs.

21t There is insufficient evidence to support a finding that the rub downs rvere sexual and involved inappropriate touching.

22. On trvo or three occr¡riions, student atbletes visiled Mr. Montalvo's home to use his .lac¡zzi in the master bath. 'lhe athlete.s wore sports bras or bathing suít tops, and brief "bikers" shofis,

21, On one occasion, V.S, went alottc to lrlr, Montalvo's house to use the Jacuzzi

24, There is insufficient evidence'to support a finding that Mr. Montalvo sexually abused or assaulted V.S. rvhen she went to use the Jac¡v;zi.

25', There is insufficient evidence to support a finding that Mr. Montalvo sexually abused or assaulted V.S. in the field house.

26. Fïom February through June 2008, lvfr, M.ontalvo engaged in approxirnately 480 phone calls with Student I , wirh over 80 of the. calls placerl after l0:00 p.m.

2'.1. The phone calls were atrout V,S.'s track performance and cmotional issues. The calls did not relate to or constitute a sexual or rornantic solicitation or relationship betu,een Mr, Monralvo and V.S.

28. 'l'hereis insuf'ficient eviclence to support a finding of any inappropriate touching, or sexual or romantic solicitatìon or rclationship, between Mr. Montalvo and V,S.

29. Tlrere is insuflìoient evidence ¿o supporl a finding that Mr, Montalvo knowingly treated V.S. in a lltanuer that adversely alf'ected her leaming, physical heahh, mental heahh, or salèty.

30. There is illsulfficielrt evidence 10 suppoÍ a findiug that Mr. Montah,o intentionally, knowingly, or reckJessly engagecl in plrysical mistreatmenl, neglecr, or abusu- of V.S.

31. \r.S. graduated from high school in May 2008 and lel't" lbr collcge that Augus[.

MONTALVO V. SBEC 0063 soAH DOCKET NO. XXX-XX-XXXX.8C PROPOS^{L F'OR DECISION P,AGE.55

32. At some point dudng the 2008-2009 academic year, V.S, told a counselor at her college and her fzunily that Mr. Montalvo had sexually assaulted her in thc spring of 2008.

33. In 2009, Mr. I\4ontalvo was chargcd rvith t\¡¡o connts of second-clegree felony improper relationship between educator and student. I-Ie was indicted in October 2009, and acquittecl of bolh counts follorving a jury 1rial.

IV, CONCLUSIONS OIT LAW

1 . SBEC has .iurisdiction over this matter. Tex. Educ. Code $21 .03 I.

2, SOAH has jr.risdiction over the hearing in this proceeding, including the authority to issue a proposal for decision with proposed fìndings of fast and conolusions of law, Tex. Gov'l Code ch. 2003.

), Proper ancl timely notice of the hearing was provided. to Mr. Montalvo. Tex, Gov't Code ch.2001.

4, Staffhad the burden of proof,

SBEC may take clisciplinary actíon against an educator rvho has violated the Educator's Code of Elhics or is unworthy to insûuct or supervise the youth of this state. 19 Tex. A

6. 'Ihe foregoiirg frinclings of Fact do not support conclusions that Mr. Montalvo violatecl '.

Standards 3.2,3.5, or 3.6 of tlrc-Educators' Code of Ethics, 19 Tex, Admin. Code ç 247.2(b)(3XB), (E), and (F) [now $ 24'1.2(3)(B), (E), and (F)],

'1,. The foregoing Findings of lract do not support a conclusion that Mr. Montalvo is a person unrvodry to instruct or superv'ise the youth of this state.

$, SBEC is not authorized to take disciplinary action against Responde¡tt's Texas Educator Certificate.

SIGNED NÍay 7,2012,,

SHANNON KILGORE ÀÐMINISTRATIVE LA\ry JUDGE STATE O FIrt cE OÌ' ADTVIINISTR A,'I'IVE HEAIùN GS

MONTALVO V. SBEC 0064 CASE NO. 03- 1 3-00370-CV

IN TFIE 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 TFIE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL CAPACITY ONLY, Appellant,

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

APPENDIX E TEXAS ADMINISTRATIVE CODE ¡t,'t * ARCHIVE DATA ***

'I,'I.:I. THIS DOCUMENT REFLECTS ALL RULES IN EFFECT AS OF DECEMBER 31,2008 ,1. tl. tt

TITLE 19. EDUCATION PARTT.STATEBOARDFoREDUCATORCERTIFICATION CHAPTER 249. DISCIPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED CASES SUBCHAPTER B. ENFORCEMENT ACTIONS AND GUIDELINES

19 TAC ç249.ts (2008)

5 249.15. 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:

or (1) place restrictions on the issuance, renewal, or holding of a certificate, either indefinitely for a set term;

(2) issue an inscribed or non-inscribed reprimand;

(3) suspend a certificate for a set term or issue a probated suspension for a set term;

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

(5) impose any additional conditions or deems necessary to facilitate the rehabilitation rorto protect students, parents ofstudents, school per

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

(1) the person has conducted school or education activities in violation of law;

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

(3) the person has violated a provision ofthe educators' code ofethics;

(4) the person has failed to report or has hindered the reporting of child abuse or the known criminal history of an educator as required by law and ç 249.14 of this title (relating to Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition);

(5) the person has abandoned a contract in violation of the T'exas Education Code. $8 21'105(c), 2l .l 60(c), or 21 .21 0 (c);

(6) the person has failed to cooperate with the Texas Education Agency (TEA) in an investigation; or

(7) the person has committed an act described in $ 2a9Ja@) of this title (relating to Complaint, àáquirËa Reporting, and Investigation; Investigative Notice; Filing of Petition), $ 249.12(b) of ttris title (reúting tõ Administrative Denial; Appeal), or $ 249.16(b) of this title (relating to Eligibility of peisons with Criminal Convictions for a Certificate under Articles 6252-l3c and 6252-13 d, Revised Civil Statutes).

(c) The TEA s aco of iaj of thissect tion in àéscribing the ue a th the sanction. The certificate holder shall have 3 to 5 249.27 of this title (relating to Answer).

(d) Upon the failure of the certificate hol chapter' ìrtá rËa staff may file a request for thei imposing the proposed sanótion in acôordance with ç 249 Prior to Hearing; Default).

the case will be (e) If the certificate holder files a timely ans\ryeï as.provided in this section, in accordance with referred to the state offrce of Adminisirative Hearings (SOAH) for hearing the SOAH rules; the Texas Government Code, Chapter 2001; and this chapter'

(f) The ground default pursue available civil, equitable, or other legal SBEC under this chaPter.

24 TexReg SOURCE: The provisions of this ç 249.15 adopted to be effective March 31,1999' 2304; amended to be effective Decembe r 16, 2007, 32 T exReg 9 I 12 CASE NO. 03- 13-00370-CV

IN THE COI.JRT 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,

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

APPENDIX F Page I

|" LexisNexis" I of 2 DOCUMENTS TEXAS ADMINISTRATIVE CODE

t;r,:r, N{CHIVE DATA *t"r'

* * {. THIS DOCUMENT REFLECTS ALL RULES IN EFFECT AS OF'DECEMBER 3 I, 2008:lt¡l'¡F

TITLE 19. EDUCATION PART 7. STATE BOARD FOR EDUCATOR CERTIFICATION CHAPTE R 24g . DI SCIPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED CASES SUBCHAPTER A. GENERAL PROVISIONS

lerAC 924e.3 (2008)

ç 249.3. Definitions have the fol- The following words, tems, and phrases, when used in this chapter, shall lowing meaningi, unless the context clearly indicates otherwise' (1) Administrative denial--a decision or action by the Texas Education Agency (TEA) staff to deny a person any of the following based on the withholding or voiding of certifica- tion test ,.ó..r; the invaiidation of a certification test registration; or evidence of a lack of good moral character or improper conduct: (A) admission to an educator ptepatalion program; (B) certifrcation (including certification following revocation, cancellation, or surrender of a previously issued certiflrcate) or renewal of certification; or (c) reinstatement of a previously suspended certificate.

(2) Administrative law judge (ALJ)--a person appointed by the chiefjudge of the State 2003. Office of Administrative fr.*i"gr (SOAH) under Texas Government Code, Chapter (3) Answer--the initial responsive pleading filed in reply to factual and legal issues raised by a petition. (4) Applic ant--a party seeking any of the followin-g from the TEA staff or the State of a Board for Educator ðertiflrcationlSBeC): issuance of a certiftcate (including issuance new certif,icate following revocation, cancellation, or surrender of a previously issued cer- tificate); renewal of a certificate; or reinstatement of a suspended certiflrcate. (5) Cancellation--the invalidation of an eroneously issued certificate. (6) Certificate--the whole or part of any certificate, permit, approval, endorsement, or simìtát form of permission issueà by the TEA staff or the SBEC. The official certificate is the record of the certificate as maintained on the SBEC's website. (7) Certificate holder--a person who holds a certificate issued under the Texas Education Code (TEC), Chapter 21, Subchapter B. (8) Chair--the presiding officer of the SBEC, elected pursuant to the TEC, $ 2l .036, or other p..ron designated Uy ttre chair to act in his or her absence or inability to serve. (9) Chiefjudge--the chief administrative law judge of the soAH. (10) code of Ethics--the code of Ethics and Standards of Practices for Texas Educators, p.n.ru.t to Chapter 247 of this title (relating to the Educators' Code of Ethics). (11) Complaint--a written statement submitted to the TEA staff that contains essential provides factì aíleging improper conduct by an educator, applicant, or examinee, and grounds for sanctions. (12) Contested case--a proceeding under this chapter in which the legal rights, duties, an opportunity for an adju- and prívileges of aparty ut. to be deãermined by the SBEÇ after dicative hearing. in- (13) Conviction--an adjudication of guilt for a criminal offense. The term does not judge has not proceeded to an clude tíre imposition of deiened adjudication for which the Article 42't2' adjudication of guilt, except as provided by code of criminal Procedure, (14) Disciplinary proceedings--contested case proceedings before the TEA staff, the filed under this soAH, and the sBEó that commence when a request for hearing is timely chapter. TEC, (15) Educ ator-aperson who is required to hold a certificate issued under the Chapter 21, SubchaPter B. SBEC or (16) Effective date--as applied to a non-rulemaking decision or action by the the appropriate legal au- the TEA staff, the date the deìision or action becomes final under thority. (17) Examinee--a person who registers to take or who takes a basic skills examination comprehen- prescri|ed by the sgÉc for admissión to an educator preparation program or a ,irr. .*u-ination prescribed by the SBEC for a certificate. (1g) Filing --aîy written petition, answer, motion, response, other written instrument, or iteÀ approprø.ty rtled with the TEA staff, the SBEC, or the SOAH under this chapter' (19) Good moral character--the virtues of a person as evidenced, at a minimum, by his or her noí having committed crimes relating directly to the duties and responsibilities of the education profession as described in ç 249.16(b) of this title (relating to Eligibility of Per- sons with ôriminal Convictions for a Certiflrcate under Articles 6252'I3c and 6252'13d, Revised Civil Statutes) or acts involving moral turpitude. (20) Informal conference--an informal meeting between the TEA staff and an educator, appiicant, or examinee; the purpose of such a meeting being to give the person an oppor- tunity to show compliance with all requirements of law for the granting or retention of a certificate or test score. (21) Invalidation--rendered void; lacking legal or administrative efficacy. (22)Law--the United States and Texas Constitutions, state and federal statutes, regula- tionì, -1.r, relevant case law, and decisions and orders of the SBEC and the commissioner of education. pro- (23) Mail--certified United States mail,return receipt requested, unless otherwise vided by this chaPter. who are present and vot- e$Majority--amajority of the voting members of the SBEC ing on the issue at the time the vote is recorded' per conduct including, but not limited to, the following: dis-

ï'iJî""ilf i'ïÍ.i""'åll;:":'ffiJ'"î;'*;ilii3:i:i' related offenses as described in g 249.r6(b) of this title (relating to Eligibility of Persons Revised with Criminal Convictions for a Certificate under Articles 6252'I3c and 6252'13d, Civil Statutes); or acts constituting abuse or neglect under the Texas Family Code, $ 261.00t. participate in a contested case under this e6)party--each person named or admitted to chapter. the (27) person--any individual, representative, corporation, or other entity, including any other follòwíng: an educátor, applicant, õr examinee; the-TEA staff, SBEC, or SOAH; agency or instrumentaíity ãf federal, state, or local government; or any public or non-profit corporation. (2S) petition--the written pleading filed by the petitioner in a contested case under this chapter. (29) petitioner--the party having the burden of proof by a preponderance of the evidence includes the fol- i., urrv contested case héaring or proceeding rnder this chapter. The term lowing persons: (A) the TEA staff; (B) a person appealing the administrative cancellation of scores based on irregularities involving a TEA-administered test; and (C) a person appealing the administrative denial of any of the following: (i) certihcation (including certification following revocation, cancellation, or surrender of a previously is- sued certificate) or renewal of certification; or (ii) reinstatement of a suspended certif,rcate. (30) Presiding officer--the chair or acting chair of the SBEC. (31) Proposal for decision--a recommended decision issued by an ALJ in accordance with the Texas Government Code, $ 2001.062. (32) Quorum--a majority of the 14 members appointed to and serving on the SBEC pur- suant to the TEC, g 21.033; eight SBEC members, as specif,red in the SBEC Operating Poli- cies and Procedures. (33) Reinstatement--the reactivation to valid status of a certiflrcate suspended by the sBEC;the lifting or discharging of a suspension on a certificate. (34) Representative--a person representing an educator, applicant, or examinee in mat- ters arising under this chapter; in a contested case proceeding before the SOAH, an attorney licensed to practice law in the State of Texas. (35) Reprimand--the SBEC's formal censuring of a certificate holder. (A) An "inscribed reprimand" is a formal, published censure appearing on the face of the educator's virtual certiflrcate. (B) A "non-inscribed reprimand" is a formal, unpublished censure that does not appear on the face of the educator's virtual certihcate. (36) Revocation--a sanction imposed by the SBEC permanently invalidating an educa- tor's certificate. (37) Respondent--the party who contests factual or legal issues or both raised in a peti- tion; the party filing an answer in response to a petition. (38) Sanction-- (A) disciplinary action by the SBEC, including a restriction, reprimand, suspension, a surrender, or revocation of a cettiftcate; (B) a reasonable and lawful punitive measure imposed by the ALJ or presiding officer against aparty,representative, or other participant involved in a disciplinary proceeding, hearing, or other matter under this chapter. (39) State Board for Educator Certification--the SBEC aclingthrough its voting mem- bers in a decision-making capacity. (40) State Board for Educator Certification member(s)-'one or more of the members of the SBEC, appointed and qualified under the TEC, $ 21.033. (41) Sunender--an educator's voluntary, permanent relinquishment and invalidation of a particuiar certiflrcate in lieu of disciplinary proceedings under this chapter and possible rev- ocation of the certiflrcate. (42) Suspension--a sanction imposed by the SBEC temporarily invalidating a particular certificate until reinstated by the SBEC. (43) Test administration rules or procedures--rules and procedures governing profes- sional examinations administered by the SBEC through the TEA staff and a test contractor, including policies, regulations, and procedures set out in a test registration bulletin. (44) Texas Education Agency staff--staff of the TEA assigned by the commissioner of education to perform the SBEC's administrative functions and services' (45) Unworthy to instruct or to supervise the youth of this state--the determination that a person'is unf,rt to hold a certihcate under the TEC, Chapter 21, Subchapter B, or to be al- iowed on a school campus under the auspices of an educator preparation program. (46) Virtual certificate--the official record of a person's certif,tcate status as maintained on the SBEC's website.

SOURCE: The provisions of this ç 249 .3 adopted to be effective March 31, 1999,24 TexReg 2304;amended to be effective December 16,2007,32 TexReg9ll2 CASE NO. 03- 1 3-00370-CV

IN TFIE COURT OF APPEALS FOR TT{E THIRD DISTRICT OF TEXAS AT AUSTIN

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

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

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IN TFIE COURT OF APPEALS FOR TFIE 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,

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

APPENDIX H REVISED

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l{-R, C. I' 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 CAPACITY ONLY, Appellant,

Texas; Cause On Appeal from the 200th Judicial District Court of Travis County, No. D-1-GN-12-002ggl; Before the Honorable Tim Sulak

APPENDIX I Flled Ín The Distríct Court of Travis Courrty, Texas

tlAY 21 3 CAUSE NO. D-1-GN-12-002991

ERASMO MONTALVO, $ IN THE DISTRICT COURT OF Plaintffi $ $ v $ TRAVIS COLTNTY, TEXAS $ THE STATE BOARD FOR $ EDUCATOR CERTIFICATION, $ Defendant. $ 2OOTH JUDICIAL DISTRICT

FINDINGS OF FACT AND CONCLUSIONS OX'LAW

The State Board for Educator Certifrcation, Defendant, has requested Findings of Fact and

regardíng that part Conclusions of Law pursuant to Rule 296 of the Rules of Civil Procedure

of the Judgment in this case granting Plaintiff s request for a permanent injunction. In

Rule 296, the Court enters the following Findings and Conclusions' To the accordance with

extent that any finding of fact may be construed as a conclusion of law, the Court hereby

it as such. Correspondingly, to the extent that any conclusion of law constitutes a adopts

finding of fact, the Court adopts it as such'

FINDINGS OF FACT

evidence, that he will I Erasmo Montalvo, Plaintiff, has shown by a preponderance of the

be ineparably harmed if a permanent injunction is not issued prohibiting the Defendant

State Boæd for Educator Certification from treating as revoked or revoking his educator

certificate based on the facts and allegations relied on by Defendant in soAH docket No'

701-ll-8468.EC, until the appellate court issues its ruling in any appeal taken by

Defendant. 2 Plaintiff has shown by a preponderance of the evidence that, based on the history of this

case, the harm to him is imminent. It is probable that the Defendant will frle a Notice of

Appeal, claim that its Notice automatically supersedes the injunction, and represent that

Plaintiff s educator certificate is revoked during the pendency of the appeal, (which may

involve an indefinite extended period of tïme), during which Plaintiff s ability to obtain

employment consistent with his experience, trainïng, and education, would likely be

si gnificantly adversely affected.

3 The competing equities favor granting the injunction.

CONCLUSIONS OF LAV/

I The educator certifrcate of Erasmo Montalvo, Plaintifl was wrongfully revoked by

Defendant State Board for Educator Certification, because the Board's decision to do so

was:

a, Not supported by substantial evidence;

b. Arbitrary and capricious; and

c, Characterized by a clearly unwarranted exercise of discretion,

2 Because the Board's decision was not supported by substantial evidence to the prejudice

of the Plaintiff, the Court is authorized to reverse the Board's decision. Gov't Code

$2001 .r74(2)(E).

3 Because the Board's decision was arbitrary and capricious, the Coürt is authorized to

reverse the Board's decision. Gov't Code $2001.174(2XF),

4. Because the Board's decision was characterized by a clearly unwaffanted exercise of

discretion, the Court is authorized to reverse the Board's decision, Gov't Code

$2001.174(2XF).

2 5. If Defendant State Board for Educator Certification is not enjoined from treating as

revoked or revoking Plaintiff s educator certificate during the pendency of any appeal

from the Judgment reversing its action, Plaintiff will suffer harm for whioh he has no

adequate remedy.

6. Under the circumstances of this case, a permanent injunction is appropriate

7, Rule 24.2(3) of the Texas Rules of Appellate Procedure authorizes the trial court to

decline to permit the judgment to be superseded if Plaintiff posts the security ordered by

the trial court in accordance with the Rule, if the judgment is not for money or an interest

in propertY.

Signed on the A'Uurof l'{lI , zot:

TIM

3 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 TTIE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL CAPACITY ONLY, Appellant,

Texas; Cause On Appeal from the 200th Judicial District Court of Travis County, No. D-1-GN-12-002ggl; Before the Honorable Tim sulak

APPENDIX J Page I

Ü LexisNexis' 1 of 4 DOCUMENTS

TEXAS ADMINISTRATIVE CODE

{,*:r, ARCHIVE DATA t*¡r.

I''.'I, THIS DOCUMENT REFLECTS ALL RULES IN EFFECT AS OF DECEMBER 31, 2008 *t:r.

TITLE 19. EDUCATION PART 7. STATE BOARD FOR EDUCATOR CERTIFICATION CHAPTER 249. DISCIPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED CASES SUBCHAPTER A. GENERAL PROVISIONS

IgTAC 9249.s (2008)

5 249.5. Purpose

The purpose of this chaPter is: (1) to protect the safety and welfare of Texas schoolchildren and school personnel; (2) to ensure educators and applicants are morally f,rt and worthy to instruct or to super- vise the youth of the state; (3) to regulate and to enforce the standards of conduct of educators and applicants; (4) to provide for disciplinary proceedings in conformity with the Texas Government code, Chãpter 2o¡l,and fhe rulês of practice and procedure of the State office of Adminis- trative Hearings; (5) to enforce an educators'code ofethics; (6) to fairly and efficiently resolve disciplinary proceedings at the least expense possible to the parties and the state; (7) to promote the development of legal precedents through State Board for Educator justly re- Ceiification (SBEC) decisions to the end that disciplinary proceedings may be solved; and (S) to provide for regulation and general administration pursuant to the SBEC's enabling statutes. SOURCE: The provisions of this ç 249.5 adopted to be effective March 3I,1999,24 TexReg 2304; amended to be effective December 16,2007,32 TexReg 9ll2 CASE NO. 03- 1 3-00370-cV

IN TTIE COURT OF APPEALS FOR TT{E 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,

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

APPENDIX K SBEC Disciplinary Policy and Mission Statement DISCIPLINARY POLICY GUIDELINES

As provided in 19 Tex. Admin. Code (TAC) ç 249.5, the primary purposes the Stut. Board for Educator Certification (SBEC) seeks to achieve in educator disciplinary matters are to:

(1) protect the safety and welfare of Texas schoolchildren and school personnel; (2) ãnsure educators and applicants are morally fit and worthy to instruct or to supervise the youth of the state; and (3) fairly and efficiently resolve educator disciplinary proceedings.

The SBEC's focus on the safety and welfare of students is also reflected in the SBEC Mission Core Principles, and Goals that were adopted on February 6, 2009.

Without diminishing in any way the SBEC 19 TAC Chapter 249 ptocedural and substantive rights of educators to contest allegations of educator misconduct, it is the policy of ihe SBEC to fully investigate such allegations and, if those alleiations are found to have merit, to ensure that any sanction that is imposed fuithers these pu{Poses.

A certified educator holds a unique position of public trust with almost unparalleled access to the hearts and minds of impressionable students. Therefore, thé conduct of an educator must be held to the highest standard. Because SBEC sanctions are imposed for reasons of public policy, and are not penal in nature, criminal procedural and punishment standards are not appropriate to educator discipline proceedings.

General Prínciples:

1. Because the SBEC's primary duty is to safeguard the interests of Texas students, educator certification must be considered a privilege and not a right. 2. SgnC disciplinary sanctions are based on educator conductthat is proved by a preponderance of the evidence, without regard to whether there has been a criminal conviction, deferred adjudication or other type of community supervision, an indictment, or even an arrest. Under the Educators' Code of Ethics, an educator may be sanctioned for conduct underlying a criminal conviction even if the crime is not subject to sanction under the Texas Occupations Code, Chapter 53. An educator may also be sanctioned for conduct underlying a criminal conviction even if the conduct is not specifically listed in 19 TAC ç 249.16, as long as the conduct renders the educator unworthy to instruct. 3. Because the SBEC recognizes that an educator's good moral character, as defined in 19 TAC ç 249.3, constitutes the essence of the role model that the educator represents to students both inside and outside the classroom, criminal law, 19 TAC Chapter 247,the Educator's Code of Ethics, and 19 TAC Chapter 249,providing for educator disciplinary proceedings, are merely a minimum base line standard for educator conduct. Active community supervision, as well as conductthat indicates dishonesty, untruthfulness, habitual impairment through drugs or alcohol, abuse or neglect of students and minors, including the educator's own children, or ,..kl.rr endangerment of the safety of others, may demonstrate that the person lacks gõod moral character, is a negative role model to students, and ão.r not possess the moral fitness necessary to be a certified educator. 4. ,,Unworthy to instruct or to supervise the youth of this state," which serves as a basis for sanctions under 19 TAC ç 249.15(b) (2), is a broad concept that is not limited to the specific criminal convictions that are described in Texas Education Code (TEC) $$ 21.058 and 21.06Q. The SBEC 19 TAC $ 24g.3(45) definition of "the determination that a person is unfit.to hold a certificate under the TEC, Chapter 21, Subchapter B, or to be allowed on a school campus under the auspices of an educator preparation program" predates thô adoption of TEC $$ 21.058 and2L 060, and is based upon the îBC, Chapter 2i, Subchapter B grant of authority to the SBEC to "regulate and oversee all aspects of the certification, continuing education, and standards of conduct of public school educators." As a Texas Court of Civil Appeals ruled in the seminal case of M¿urs v. Matthews,270 S.W. 586 (gZS),"unworthy to instruct" "means the lack of 'worth'; the absence of ihor. moral and mental qualities which are required to enable one to render the service essential to ttre accomplishment of the object which the law has in view." Therefore, the moral fitness of a person to instruct the youth of this state must be determined from an examination of all relevant conduct, is not limited to conductthaloccurs while performing the duties of a professional educator, and is not limited to conduct that constitutes a criminal violation or results in a criminal conviction. 5. Educators have positions of authority, have extensive access to students when no other adults (or even other students, in some cases) are present, and have access to confidential information that could provide a unique opportunity to exploit student vulnerabilities. Therefore, educators must clearly understand the boundaries of the educator-student relationship that they are trusted not to cross. The SBEC considers any violation of that trust, such as soliciting or engaging in a romantic or sexual relationship with any student or minor, to be conduct that may result in permanent revocation of an educator' s certificate. 6. The SBEC recognizes and considers evidence of rehabilitation with regard to educator conduct that could result in sanction, denial of a certification application, or denial of an application for reinstatement of a certificate, but must also consider the nature and seriousness of prior conduct, the potential danger the conduct poses to the health and welfare of students, the effect of the prior conduct upon any victims of the conduct, whether sufficient time has passed and sufficient evidence is presented to demonstrate that the educator or applicant has been rehabilitated from the prior conduct, and the effect of the ôónduct upon the educator's good moral character and ability to be a proper role model for students.

Mission Statement (ßnck to tt¡p)

Ensure the highest level of educator preparation to promote student achievement and to ensure the safety and welfare of Texas school children Adopted February 6, 2009