State v. Erasmo Montalvo

Opinion

ACCEPTED 03-13-00370-CV 5888749 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/30/2015 4:42:41 PM JEFFREY D. KYLE CLERK CASE NO. 03-13-00370-CV

FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS 6/30/2015 4:42:41 PM FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN 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

APPELLEE'S BRIEF

MARK W. ROBINETT BRIM, ARNETT & ROBINETT, P.C. 2525 Wallingwood Drive, Building 14 Austin, Texas 78746 (512) 328-0048 (512) 328-4814 (facsimile) e-mail: mrobinett@brimarnett.com

Oral Argument Requested Attorneys for Appellee TABLE OF CONTENTS

STATEMENT CONCERNING ORAL ARGUMENT 1 STATEMENT OF FACTS 3 SUMMARY OF THE ARGUMENT 9 ISSUE I.: The trial court correctly held that the Agency's decision to revoke Mr Montalvo's teaching certificate was not supported by substantial evidence. 11 A. Although the Board has the authority to issue sanctions for Code of Ethics violations, the Board is not entitled to revoke teaching certificates in the absence of actual wrongdoing 11 1. The word "unworthy" does not give notice that the conduct in Mr. Montalvo has actually been found to have engaged, is proscribed. 13 2. The Code of Ethics has been adopted since the Marrs case 23 B. The Agency has failed to show that Mr. Montalvo's actions, which it admits are not violations of the Code of Ethics, somehow make him "unworthy to instruct" 29 ISSUE IL: The Agency's changes fly in the face of the Findings of Fact it adopted as its own 31 ISSUE III.: Board's application of the "unworthy to instruct" "standard" is arbitrary and capricious and not supported by substantial evidence even if the language is constitutional on its face. 36 A. The meaning and history of "unworthy to instruct." 36 1. The "unworthy to instruct language" was repealed by the legislature in 1995 36 2. The "unworthy to instruct" language has never been held to be applicable to actions that did not clearly make an individual "unworthy to instruct." 37 B. If "unworthy to instruct" applies to anyone, it is not Mr. Montalvo. 38

ISSUE IV.: The trial court exercised its discretion properly and responsibly in issuing a permanent injunction 40 CONCLUSION 41 PRAYER 42 INDEX OF AUTHORITIES

CASES Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294 (1972) 14, 31 Marrs v. Matthews, 270 SW 586 (Tex. Civ. App.—Texarkana 1925, writ ref d) 11, 12, 13, 23, 38

Texas Dept. of Pub. Safety v. Chavez, 981 S.W.2d 449 (Tex. App. 1998) 14 Shivers v. Liberty ISD, No. 163-R3-682, p. 14 (Comm. Educ., Jan. 1985) 34 Whalen v. Rock Springs ISD, No. 065-R1B-284 Comm'r Education. 1985), 1985 TX Educ. Agency LEXIS 61, *11985, at *17 34, 35

STATUTES

19 Tex. Admin Code §247.2(b)(3)(B), (E), and (F) 27, 28, 38 19 Tex. Admin. Code §249.3(51) 19 19 Tex. Admin. Code §249.15(b)(2) 6 24 Tex. Reg. 2308 (March 26, 1999) 24 Texas Education Code §13.046 24

Texas Education Code §13.203 23

ii STATEMENT CONCERNING ORAL ARGUMENT

Erasmo Montalvo, Appellee, requests an opportunity to present Oral

Argument if the Appellant's Request for Oral Argument is granted.

1 CASE NO. 03-13-00370-CV

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

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

v.

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:

This case demonstrates why we have judicial review of administrative

decisions. It is fundamental that courts are not allowed to second guess

administrative agencies in matters entrusted to the agency's expertise. Indeed, the

2 statutes and case law make clear that the courts must affirm an agency's decision

as long as it is supported by substantial (i.e., a minimal amount of) evidence and is

reasonable (i.e., not arbitrary and capricious). The reviewing court is not allowed

to substitute its judgment for the agency's, even if the court would have made a

different decision.

However, there are times when an agency's action is not reasonable. There

are times when an agency ignores the facts and the evidence. There are times when

an agency makes whimsical decisions based on emotion rather than logic. In those

cases, the courts are authorized to tell the agency that it has gone too far, that its

decision cannot stand, that there are limits to its discretion.

This is that case.

What's more, it is good for the agency to know there are limits, that its

decisions must be carefully considered, based on evidence, and supported by

findings of fact made by an objective fact finder.

STATEMENT OF FACTS

1. Student V.S. was a senior at Rio Grande City High School in the spring of

2008 who participated in track. Her coach was Erasmo Montalvo, the Appellee in

this case.

3 2. V.S. graduated that spring. After she graduated, in late May or early June,

she participated in a video concerning her track accomplishments with Mr.

Montalvo. The video was arranged by Mr. Montalvo at the request of V.S.'s father

to get her some media coverage. (SOAH Transcript: 763:6-764:17; 766:18-24;

Respondent's Exh. 23.)

3. In the video, V.S. interacts with Mr. Montalvo in a carefree, adoring, casual,

and "giddy" (the term used by Mr. Villarreal, the moderator) manner. As the

Administrative Law Judge at State Office of Administrative Hearings characterized

her conduct, she "appears happy and excited, and seems comfortable in Mr.

Montalvo's presence." (SBEC Appendix D, p. 42.) She looked on Mr. Montalvo

with a visage of admiration and appreciation. In all respects, she appeared

genuinely excited and happy to be with him.

When asked what was special about that moment, her response was: "Being

here with my coach."

She even proudly wore the Corpus Christi Islander tee shirt (where she was

going to attend college as a track athlete) Mr. Montalvo had purchased for her for

this event. (SOAH Transcript, p. 168: 24 through 169: 12.)

4. V.S.'s attitude at this point was consistent with both her recent and

subsequent interactions with Mr. Montalvo, which included:

4 • Seeking Mr. Montalvo out and asking him to have his picture taken with her at the Los Nuestros scholarship dinner in May 2008 (SOAR Transcript, p. 624: 21-626:12)

• Keeping a poster Mr. Montalvo had made about her during her sophomore year in her senior memory book (SOAH Transcript, p. 164, line 3 through 165: 25)

• Talking to him on the phone, including making calls to him herself (SOAH Transcript, p. 155: 7-9; 157: 12-18; Pet. Exh. 3)

• Attending a barbecue given by Mr. Montalvo at his house for fellow student/athlete A.G.'s birthday when A.G.'s father was sick (SOAH Transcript, p. 609:11-610: ll[testimony of A.G.])

• Volunteering to help Mr. Montalvo out with summer track and working with him in that regard (SOAH Transcript, p. 157:19 through 158:6; 623: 24 - 624: 20 [testimony of Principal Saenz]; 655: 9 - 656: 3 [testimony of Baldemar Garza]; 712: 1-21 [testimony of K.S.]; 721: 11-20 [testimony of A.B.]

5. Several months later, S.V. accused Mr. Montalvo of raping her the previous

April (2008). (See Appendix A, Paragraphs 18-19.)

6. Mr. Montalvo was promptly arrested and indicted on two counts of an

Improper Relationship Between Educator and Student. (See Appendix A, Par. 22.)

7. A jury, apparently not believing V.S.'s testimony, found Mr. Montalvo Not

Guilty on both counts. (See Appendix A, Par. 23.)

8. The State Board for Educator Certification was not satisfied with this result.

It decided to pursue its own charges against Mr. Montalvo designed to deprive Mr.

Montalvo of his teaching certification. The Agency submitted a Petition to the

5 State Office of Administrative Hearings that contained the following allegations

(Appendix A):

• That in or around the spring of 2008, Plaintiff had knowingly engaged in sexual intercourse with "Student 1," a person under the age of 18 years of age on numerous occasions. (Par. 11-5) • That in or around the spring of 2008, after Student 1 suffered a leg injury, he "took Student 1 to a bus and massaged her leg." (Par. 11-6) • That as the injury did not heal, he moved his hand "farther and farther up her leg" into her genital area. (Par. 11-8) • That during the spring of 2008, Student 1 and other female track athletes would go to his home to soak in his hot tub. (Par. 11-9) • On one occasion, when Student 1 was alone with him, he engaged in oral sex with her. (Par. II-10) • Subsequently, he engaged in sexual relations with Student 1 in the field house. (Par. II-11) • Continuing on through the spring of 2008, he would engage in inappropriate touching of Student 1. (Par. 11-12) • He told the student that he had to continue to massage her, because it was the only way she would perform well at upcoming track meets. (Par. II- 13) • He told the student that if she told the trainer she was injured, the trainer would not let her run in upcoming track meets. (Par. 11-14) • During the spring of 2008, there were approximately 480 phone calls between Plaintiff and the student, of which over 80 were after 10p.m.

9. The Agency contended in its Petition that its allegations against Plaintiff

made Plaintiff unworthy to instruct or supervise the youth of this state in violation

of 19 Tex. Admin. Code §249.15(b)(2), and that he violated the Educators' Code

of Ethics as follows:

6 • Standard 1.7, by "failing to comply with state regulations, written school board policies, and other laws." • Standard 3.2, by "knowingly treating a student in a manner that adversely affects the student's learning, physical health, mental health, or safety." • Standard 3.5 by "engaging in physical mistreatment of a student." • Standard 3.6, by "soliciting or engaging in sexual conduct or a romantic relationship with a student."

10. Following a hearing that went into a fourth day, the Administrative Law

Judge issued a fifty-five page Proposal for Decision that carefully and meticulously

rejected every reason proffered by the Agency as a basis for issuing sanctions

against Mr. Montalvo's certification. The Administrative Law Judge, as had the

jury in the criminal trial, did not find V.S.'s testimony credible. (Agency Appendix

D.)

11. More specifically, the Administrative Law Judge made the following

Findings of Fact:

• There is insufficient evidence to support a finding that the rub downs were sexual and involved inappropriate touching. (Finding No. 21) • There is insufficient evidence to support a finding that Mr. Montalvo sexually abused or assaulted V.S. when she went to use the Jacuzzi. (Finding No. 24) • There is insufficient evidence to support a finding that Mr. Montalvo sexually abused or assaulted V.S. in the field house. (Finding No. 25) • The phone calls were about V.S.'s track performance and emotional issues. The calls did not relate to or constitute a sexual or romantic solicitation or relationship between Mr. Montalvo and V.S. (No. 27)

7 • There is insufficient evidence to support a finding of any inappropriate touching, or sexual or romantic solicitation or relationship, between Mr. Montalvo and V.S. (Finding No. 28) • There is insufficient evidence to support a finding that Mr. Montalvo knowingly treated V.S. in a manner that adversely affected her learning, physical health, mental health, or safety. (Finding No. 29) • There is insufficient evidence to support a finding that Mr. Montalvo intentionally, knowingly, or recklessly engaged in physical mistreatment, neglect, or abuse of V.S. (Finding No. 30)

12. The State Board for Educator Certification adopted all of these Findings of

Fact. (Agency Appendix B.)

13. Notwithstanding the Board's adoption of these Findings of Fact, the Board

acted to revoke Mr. Montalvo's teaching certification by changing the

Administrative Law Judge's Conclusions of Law. In particular, the All concluded

that:

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.

(Conclusion of Law No. 7.)

The Board changed this Conclusion of Law to read: 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.

(Agency Appendix B.)

14. It is undisputed that Plaintiff timely filed a Motion for Rehearing, which was

overruled by Operation of Law on September 24, 2012.

8 15. It is undisputed that Plaintiff filed suit for a Temporary Restraining Order,

Temporary Injunction, and Permanent Injunction to enjoin the Agency from

treating his certificate as being revoked.

16. It is undisputed that the requested Temporary Restraining Order was granted

on September 25, 2012.

17. It is undisputed that the requested Temporary Injunction was granted on

October 9, 2012.

18. It is undisputed that the requested permanent injunction was granted on

April 29, 2013. The Trial Court, in its Findings of Fact and Conclusions of Law,

held that the Agency's decision revoking Mr. Montalvo's teaching certificate was

arbitrary and capricious, not supported by substantial evidence, and characterized

by a clearly unwarranted exercise of discretion.

SUMMARY OF THE ARGUMENT

The Board adopted all of the Administrative Law Judge's Findings of Fact,

including findings that rejected the Agency's claims that Mr. Montalvo had

violated the Code of Ethics for Texas Educators.

Case closed.

Or it should have been closed. This case should have involved nothing more

than the Board adopting the Findings of Fact made by the fact finder who actually

9 heard the testimony and assessed the witnesses' credibility, and moving on to its

next case.

Instead, the Board took a few findings out of context, while ignoring

findings that put them in context, in order to attempt to justify a decision that has

since been met with skepticism or rejected by judge after judge after judge (i.e., a

different District Court judge in each of the TRO, Temporary Injunction, and

Permanent Injunction hearings).

The Agency's decision to revoke Mr. Montalvo's teaching certificate has no

substance. It is not based on evidence or facts as found by the Administrative Law

Judge and adopted by the Agency. It is not based on reason. It is the epitome of

arbitrariness, capriciousness, and abuse of discretion.

In the absence of findings of any violations of the Educators' Code of

Ethics, the Agency insists that it can deprive an educator of his career if, in its

opinion, he exercises a lapse of judgment that does not have any adverse effect on

anyone. That it can declare a teacher who makes what it considers a mistake,

"unworthy to instruct or to supervise the youth of this state," even if he has been a

successful teacher for more than twenty years; indeed, even if he has the trust of

the school district that has employed him for more than twenty years, that knows

him much better than the Agency ever will, and which wishes to exercise its

judgment as a matter of local control to continue employing him.

10 The Agency's action to revoke Mr. Montalvo's certificate in the absence of

any violation of the Code of Ethics or any finding of harm or intent to harm any

student or anyone else is the epitome of arbitrariness and capriciousness, the lack

of substantial evidence, and abuse of discretion.

ISSUE I.:

The trial court correctly held that the Agency's decision to revoke Mr. Montalvo's teaching certificate was not supported by substantial evidence.

A. Although the Board has the authority to issue sanctions for Code of Ethics violations, the Board is not entitled to revoke teaching certificates in the absence of actual wrongdoing

The Agency relies heavily on Marrs v. Matthews, 270 SW 586 (Tex. Civ.

App.—Texarkana 1925, writ ref'd). In that case, the court addressed the language

of then Art. 2814, which provided that the state superintendent of schools was

authorized "to cancel the certificate of any person who is unworthy to instruct the

youth of the state." Id. at 587. That language, repealed by the legislature in 1995,

was incorporated into the Agency's rules in 1999. (Agency Brief, p. 18; Appendix

B [§45].)

In Marrs, what made the certificate holder "unworthy to instruct the youth of

the state" was his participation in "a fraudulent scheme for issuing teachers'

certificates at examinations conducted in Hopkins county." Id.

11 The issue facing the court was whether the statute was "sufficiently definite

in stating what shall constitute a disqualification for holding a teacher's certificate."

If it were, the sanction in that case would be valid. If not, the court mused that the

trial court had correctly found in favor the teacher "notwithstanding the

particular offense presented against the appellee might evidence an unworthiness

to hold a teacher's certificate." Id.

The Court of Appeals held that the term "unworthy" was not impermissibly

vague as to the conduct in that case (i.e., fraud in connection with teaching

certificates). It did not conclude that the state superintendent could call any

conduct he disagreed with "unworthy" and take away a teacher's certificate.

The Court discussed the concept of "unworthiness" as follows:

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

12 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."

Id. at 588.

Worthy of repeating: "[T]here must be lodged somewhere a personal

discretion for determining who are the unworthy."

On this, there is no disagreement.

However, there is a difference between "a personal discretion" and

"unaccountability," a difference noted, in essence, by the Court:

Appeals may be taken from the ruling of the state superintendent to the state board of education. If the aggrieved party thinks he has been arbitrarily dealt with by this tribunal, he may appeal to the courts for relief.

This is precisely what we have in the present case: Mr. Montalvo thinks he

has been dealt with arbitrarily by the Agency. The term "unworthy" does not and

cannot be applied to him for the following reasons:

1. The word "unworthy" does not give notice that the conduct in Mr. Montalvo has actually been found to have engaged, is proscribed.

There can be no argument that the phrase "unworthy to instruct" is vague.

As pointed out by the U.S. Supreme Court:

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary

13 intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99 (1972).

See also, Texas Dept. of Pub. Safety v. Chavez, 981 S.W.2d 449, 452 (Tex. App.

1998): "The standard rule is that a statute is unconstitutionally vague if the

required course of conduct is stated in terms so vague that people of common

intelligence must guess at what is required."

How does this square with the fact that the Texarkana Court of Appeals held

in 1925 that the phrase "unworthy to instruct" was adequate notice that a teacher

could lose his certificate if he "engaged in a fraudulent scheme for issuing teachers'

certificates"?

How it squares is that certain acts are clearly within the concept of

"unworthiness to teach the State's children." It should come as no surprise to

anyone that a teacher who abuses children physically or sexually, who embezzles

or steals money from a school district, or who fraudulently issues teachers'

certificates comes within this phrase, notwithstanding the fact that it does not

specifically mention these types of conduct. It is reasonable to conclude that a

14 person of ordinary intelligence would understand that these types of acts are so

heinous that they prohibited, and, therefore, should act accordingly.

The question is whether the conduct cited by the Agency in this case falls

into the "self-apparent" category, or whether it is conduct that is either (a) arguably

not so extreme as to make one "unworthy to instruct," or (b) easily correctable

(i.e., not so severe that a "word to the wise" to "stop doing that" is sufficient).

The Findings taken out of context and relied on by the Agency are the

following:

(a) Finding of Fact No. 11: "District protocol required that injured students be sent to the trainer."

Failure to follow District protocol makes one "unworthy to instruct"? This

is hardly self-apparent. There is a reason this Finding uses the word "protocol":

the reason is that it was not a rule. It was not a policy. It might have been a

guideline. It might be good practice. It might be a very good practice. But it was

not a rule. It was not a policy. Rules are directives. A rule places people on notice

that there may be negative consequences for the rule's violation.

Protocol? Not so much.

Nowhere in the Agency's Disciplinary Guidelines does it even suggest that

the failure to follow a "protocol" crosses any lines between the educator and

student, or in any way makes an individual "unworthy to instruct" and at risk of

15 losing his certification. Otherwise, it is unlikely that there would be a teacher in

the state who is "worthy" to instruct.

In addition, Finding of Fact No. 12 indicates that the Assistant Coach told

V.S. to go to the trainer, and Mr. Montalvo did not prevent or discourage her from

doing so. And this does not even take into consideration Finding No. 29 that

"Where is insufficient evidence to support a finding that Mr. Montalvo knowingly

treated V.S. in a manner that adversely affected her learning, physical health,

mental health, or safety."

(b) Finding of Fact No. 14: "V.S. did not visit the trainer about her injury."

There is nothing in this Finding that indicates that Mr. Montalvo crossed the

educator-student line or engaged in any conduct or activity that would indicate that

he is "unworthy" to instruct the youth of the State of Texas. As mentioned above,

V.S. was told to go to the trainer by the Assistant Coach, Mr. Montalvo did nothing

to prevent or discourage her from doing so, and she simply decided not to go. In

fact, the complete lack of logic in using this Finding to support its claim that Mr.

Montalvo lacks "worth," undermines the Agency's entire rationale: it is the

essence of "grasping at straws."

(c) Findings of Fact Nos. 18, 20, 22, and 23:

18. Following her injury, V.S. underwent stretching, rub downs, ice baths, and whirlpool use under Mr. Montalvo's direction.

16 20. Mr. Montalvo gave V.S., and other students rub downs.

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.

23. On one occasion, V.S. went alone to Mr. Montalvo's house to use the Jacuzzi.

These situations might be problematic if accompanied by findings that

something—anything—improper occurred on any of these occasions. However,

there are no such findings. The Administrative Law Judge heard and considered

all of the evidence and found that there was insufficient evidence that the rub

downs were sexual in nature, that there was any romantic solicitation or

relationship between Mr. Montalvo and V.S., or that he engaged in any conduct

that adversely affected her in any way or that could be characterized as

mistreatment, neglect, or abuse.

As for rubbing down athletes, the testimony was that there were no

guidelines or policies concerning that matter. (SOAH Transcript: 234: 17-23; 246:

4-7).

It is true that the coaches were counseled not to be alone with an athlete.

(SOAR Transcript 233: 16). But this was not a rule. It was probably a good idea,

but not because being alone with an athlete is per se improper, immoral, or

unethical. It was because of "the way it's going to appear to other people" (SOAH

17 Transcript: 233: 18; 243: 13-245:8), like members of an Agency who were not

present at the hearing and not in a position to assess whether anything improper

actually occurred, and who might have a knee-jerk reaction to a random piece of

information devoid of all context.

In short, the Agency appears to be inclined to think the worst of teachers and

wants to punish them for "crossing the line" even when there is no evidence that

the line was crossed, no evidence that any conduct by the teacher was intended to

harm any student, and no evidence that the teacher's conduct actually resulted in

any harm. But that inclination is different from having a factual basis for

concluding that a teacher is "unworthy to instruct" the youth of the State.

In short, nothing in the phrase "unworthy to instruct" places a teacher on

notice that he will be in danger of losing his certification if, in his position as a

coach, he gives students rubdowns, assists them in stretching, allows them to use

his personal Jacuzzi when the district's is out of order, and sees them in biker

shorts. This would be a different story if the teacher were to actually engage in

improper conduct on any of these occasions; however, the Findings of Fact

adopted by the Board clearly hold that nothing improper happened.

18 (d)Finding of Fact No. 26: "From February through June 2008, Mr. Montalvo engaged in approximately 480 phone calls with Student 1, with over 80 of the calls placed after 10:00 p.m."

The Agency has actually adopted guidelines to which this Finding is

relevant—guidelines that defeat its own argument. In 2011, the Agency adopted

Tex. Admin. Code 19 §249.3(50) (now §51) concerning "Solicitation of a romantic

relationship." Subsection (A) provides that factors which may be considered "in

determining the romantic intent of such communications or behavior, include,

without limitation":

(i) the nature of the communications; (ii) the timing of the communications; (iii) the extent of the communications;

********************

(vii) any other evidence tending to show the context of the communications between the educator and student.

Factors (i) and (vii) are not at issue in this case, leaving only the timing and

"extent" of the calls to take into account in determining whether Mr. Montalvo is

"unworthy to instruct."

The educators who testified at the hearing testified that although 480 calls

during a five month period, including eighty after 10:00p.m., might appear to be

excessive, the important aspect was what the calls actually concerned. (See SOAH

transcript for testimony of Ricardo Saenz, Mr. Montalvo' s principal, at p. 643,

19 lines through 644:3; 647: 14-649: 4; and testimony of the Rio Grande City ISD

superintendent at page 873, lines 3-12. )

After assessing the testimony of the parties, including Mr. Montalvo's

accuser, the AU found that nothing improper was discussed during those calls that

might pertain to the solicitation of a romantic relationship. She made, therefore,

Finding of Fact No. 27:

The phone calls were about V.S.'s track performance and emotional issues. The calls did not relate to or constitute a sexual or romantic solicitation or relationship between Mr. Montalvo and V.S.

The Agency has wisely adopted no rule that simply states that X number of

calls between a teacher and student crosses a line. Whatever number X might be,

whether 1, 10, 20, 300, or 1,000, would be arbitrary. The same is true for the

timing of the calls.

Instead, the Agency has included the number of calls and their timing as

factors to be taken into consideration--not in a vacuum, but in conjunction with

other factors, including the nature or substance of the calls.

To the extent the number of calls, by itself, is even relevant to anything, the

480 calls referenced included 162 from the student (SOAH Transcript: Agency

Exh. 2A) to Mr. Montalvo. Further, approximately 301 of the calls (Exh. 2A has

some entries that are difficult to read) were one minute or less in duration, and 37

20 more were two minutes or less. In fact, a large number of the calls "lasted" zero

seconds.

In short, the All followed the Agency's guidelines to a tee. That is, in

essence, what the Agency objects to. The ALJ took all factors that the Agency

considers relevant to the situation and actually took them into consideration.

If the Agency wants to establish a certain number of calls between a teacher

and a student as "crossing the line," it can certainly do so. Then, at least, teachers

would be on notice of the conduct for which they might be disciplined. If the

number were fifteen, they could stop at fourteen. If 300, they could stop at 299. If

one, they could refrain altogether. If that is what the Agency wants, then it should

do it.

But there is no rational basis, in the absence of a bright line rule, for

recoiling in horror and punishing a good teacher because he did not guess what

number of calls or their timing might result in punitive action even in the absence

of any dishonorable intent and in the absence of any adverse effect on a student.

Indeed, this is consistent with comments made by Merle Dover, one of the

Agency's attorneys, at the University of Texas School Law Seminar on March 4,

2011, as to the relevance of the number and timing of phone calls and other

electronic communications:

It's really to put the educator on notice that in many of our cases, the text messaging becomes circumstantial evidence of the sanctionable conduct.

21 And the amount comes into consideration during those cases because if you have a situation where there are 10,000 text messages between an educator and a student, and the majority of those are occurring after midnight, this is going to be circumstantial evidence that perhaps those communications aren't about homework or what's going on in class and that there is an inappropriate relationship taking place. So we can't give a bright line number. What we do have is the number of times and length of the communication. And I think educators to be on notice that they will be considered. We find out about these cases because there has been a complaint of an inappropriate relationship. And when you only have the student and the teacher as the only two people who really know what went on between them, we look to these text communications and the phone records as circumstantial evidence.

(Emphasis added.)

Ms. Dover's comments in this regard make sense. It clarifies the proper and

reasonable use of information concerning the number and timing of phone calls

between teacher and student: as a reason to look into the situation to see whether

there is an improper relationship. It is okay to be suspicious. What is not okay is to

use just this information, in a vacuum, removing it from all context. What is not

okay is to ignore information that negates the inference you want to draw. This is

especially true when a hearing has been held, testimony has been received, and the

fact finder has made specific fact findings rejecting the knee-jerk conclusion that

something inappropriate must be going on.

In conclusion, the term "unworthy to instruct" is not sufficient to place a

teacher on notice that talking on the phone to a student a certain number of times

22 and at certain times of day, could result in loss of his teaching certificate in the

absence of any other information. Not when the Agency has conceded that the

number and times of the conversations are merely information to be "considered,"

not bright line litmus tests.

In sum, the Administrative Law Judge considered all of the information

related to the phone calls and rejected the Agency's position. There is no rational

or logical basis, supported by the evidence or the facts, to conclude that they make

Mr. Montalvo "unworthy to instruct" the youth of the State.

2. The Code of Ethics has been adopted since the Marrs case

The Marrs decision was issued in 1925. The phrase "unworthy to instruct"

was all the state superintendent had to work with at that time. As mentioned

previously, that phrase was useful as applied to obvious and inarguable

misconduct.

In 1971, the legislature created the Professional Practices Commission as

§13.203 of the Education Code. (Acts 1971, 62nd Leg., p. 1854, ch. 735, §2.156.)

See Appendix D.

Part of the PPC's charge, as found in §13.210, was as follows:

(a) After public hearings at which associations and individuals representing the teaching profession and other interested persons shall have full opportunity to submit and request adoption of all or of part of the provisions of unofficial codes of ethics that have been adopted by state and national associations of members of the teaching profession, and to support, oppose, or request amendments to proposal, the commission shall develop

23 and adopt a "code of ethics and standard practices" which shall regulate and govern the conduct of the profession, parents, students, and the community. Section 13.211 provided that: A violation of any rule of the code of ethics and standard practices. . .shall be deemed to be "unprofessional practice," which shall be grounds for suspension or revocation of the teaching certificate of the member, which grounds shall be in addition to those specified in Section 13.046 of this code; or the member may be warned or reprimanded for such violation, if in the judgment of the commissioner of education the violation is not of sufficient gravity to require suspension or revocation of the teaching certificate.

Section 13.046 (Appendix E) included a provision authorizing the

commissioner to suspend or cancel a certificate:

(1) On satisfactory evidence that the holder is conducting his school or his teaching activities in violation of the laws of this state;

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

(3) On complaint made. . .that the holder of the certificate [has abandoned his contract with a school district].

The Agency cites §13.046 in its brief (at 18). It notes that this section was

repealed in 1995, when the legislature removed the PPC from under the

Commissioner of Education and State Board of Education, and replaced it with a

new agency (the current State Board for Educator Certification).

The upshot all this is that the term "unworthy to instruct" was, as of 1995, no

longer a statutory term. It was not until years later that it resurfaced as one of the

new Agency's rules at 24 Tex. Reg. 2308 (March 26, 1999), where it was defined

as follows:

24 (45) Unworthy to instruct or to supervise the youth of this state--the determination that a person is unfit to hold a certificate under Subchapter B, Chapter 21, of the Act or to be allowed on a school campus under the auspices of an educator preparation program.

In effect at all times pertinent to the present case, the 2007 definition was

identical (See Agency's Appendix F):

(45) 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, or to be allowed on a school campus under the auspices of an educator preparation program.

Nothing there places a teacher on notice that the findings taken out of

context by the Agency in this case could lead to the loss of one's certificate. If this

language has any substance at all, it must be restricted to egregious cases such as

fraudulently issuing teaching certificates. Except that there is probably not an

egregious case that the Code of Ethics fails to cover—which is a major difference

between the usage of the term "unworthy to instruct" in a statute in 1925 and its

use as a supplement to an extensive Code of Ethics in the 2lst Century.

This is not to say that the Code of Ethics is perfect. It is not. However, it

does a much better job at placing educators on notice as to what is sanctionable

conduct and what is not. Although it cannot list every specific fact situation that

could land an educator in "hot water," it does provide more guidance, more clarity,

and less guesswork to those in the teaching profession.

25 The specific provisions of the Code of Ethics relied on by the Agency in this

case were:

• Standard 1.7, by "failing to comply with state regulations, written school board policies, and other laws."

• Standard 3.2, by "knowingly treating a student in a manner that adversely affects the student's learning, physical health, mental health, or safety."

• Standard 3.5 by "engaging in physical mistreatment of a student."

• Standard 3.6, by "soliciting or engaging in sexual conduct or a romantic relationship with a student."

There was no evidence of failing to comply with any state regulations,

written school board policies, or other laws. Standards 3.2, 3.5, and 3.6 were all

specifically rejected by the Administrative Law Judge (as well as by the Agency

itself in adopting the ALJ's Findings of Fact and Conclusions of Law 1-6):

Finding of Fact No. 21: "There is insufficient evidence to support a finding that the rub downs were sexual and involved inappropriate touching." Finding of Fact No. 24: "There is insufficient evidence to support a finding that Mr. Montalvo sexually abused or assaulted V.S. when she went to use the Jacuzzi." Finding of Fact No. 25: "There is insufficient evidence to support a finding that Mr. Montalvo sexually abused or assaulted V.S. in the field house." Finding of Fact No. 27: "the phone calls were about V.S.'s track performance and emotional issues. The calls did not relate to or constitute a sexual or romantic solicitation or relationship between Mr. Montalvo and V.S."

26 Finding of Fact No. 28: "There is insufficient evidence to support a finding of any inappropriate touching, or sexual or romantic solicitation or relationship, between Mr. Montalvo and V.S." Finding of Fact No. 29: "There is insufficient evidence to support a finding that Mr. Montalvo knowingly treated V.S. in a manner that adversely affected her learning, physical health, mental health, or safety. Finding of Fact No. 30: "There is insufficient evidence to support a finding that Mr. Montalvo intentionally, knowingly, or recklessly engaged in physical mistreatment, neglect, or abuse of V.S. Conclusion of Law No. 6: "The foregoing Findings of Fact do not support conclusions that Mr. Montalvo violated Standards 3.2, 3.5 or 3.6 of the Educators' Code of Ethics. 19 Tex. Administrator. Code §247.2(b)(3)(B), (E), and (F) [now §247.2(3)(B), (E), and (F)]."

This does not mean that there might not be a situation that would fall outside

of the Educators' Code of Ethics that would make a teacher "unworthy to instruct."

However, the provision concerning teacher-student interactions is extensive. At all

times pertinent to the present case, the provisions related to Ethical conduct toward

students, read as follows (Appendix G):

Ethical Conduct Toward Students.

(A) Standard 3.1. The educator shall not reveal confidential information concerning students unless disclosure serves lawful professional purposes or is required by law.

(B) Standard 3.2. The educator shall not knowingly treat a student in a manner that adversely affects the student's learning, physical health, mental health, or safety.

(C) Standard 3.3. The educator shall not deliberately or knowingly misrepresent facts regarding a student.

27 (D) Standard 3.4. The educator shall not exclude a student from participation in a program, deny benefits to a student, or grant an advantage to a student on the basis of race, color, sex, disability, national origin, religion, or family status.

(E) Standard 3.5. The educator shall not engage in physical mistreatment of a student.

(F) Standard 3.6. The educator shall not solicit or engage in sexual conduct or a romantic relationship with a student.

(G) Standard 3.7. The educator shall not furnish alcohol or illegal/unauthorized drugs to any student or knowingly allow any student to consume alcohol or illegal/unauthorized drugs in the presence of the educator.

These are what the Agency calls its "enforceable standards." 19 Tex. Admin.

Code §247.2. They include, as Standard 3.2, a provision that "[t]he educator shall

not knowingly treat a student in a manner that adversely affects the student's

learning, physical health, mental health, or safety." The All specifically found that

Mr. Montalvo did not treat the student in question in a way that was adverse to her

learning, physical health, mental health, or safety."

Not even with respect to talking to her on the phone.

In conclusion, when put in the context of all of the Findings made by the

Administrative Law Judge and adopted by the Agency, as well as the specific

findings that none of the alleged Code of Ethics violations occurred, the phrase

"unworthy to instruct," cannot be held to have any applicability to the present case.

28 B. The Agency has failed to show that Mr. Montalvo's actions, which it admits are not violations of the Code of Ethics, somehow make him "unworthy to instruct"

As mentioned previously, it might be possible for an individual to be

"unworthy to instruct" while having complied with the Code of Ethics, but

Appellee will leave it to the Agency to come up with hypotheticals that fit into that

category.

This case, however, does not deal with hypotheticals; it deals with reality.

And nothing that Mr. Montalvo has been found to have done qualifies for the

"Ethical but still somehow Unworthy" designation.

What the Agency contends makes him "unworthy to instruct," even in the

absence of any finding of a violation of the Code of Ethics, and even with the

Agency's relatively meaningless and circular definition of "unworthy" ("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") are the following (Agency Brief, p. 22):

(a) Although nothing untoward happened when V.S went to Mr. Montalvo's house to use the Jacuzzi, he allowed her to do so;

(b) Although the phone calls were not of an improper nature, and the number, pursuant to the Board's own rules, is simply one piece of information to be considered in determining whether something improper was going on, the number of calls, in and of itself, makes him "unworthy to instruct."

29 The Agency contends, on page 11 of its brief, that it is "reasonable for the

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

four-month period between VS and Montalvo."

Indeed, it is. This information justifies being concerned. It justifies being

suspicious. It justifies looking into the matter and investigating it to determine if

actual wrongdoing was taking place.

Well, the Agency investigated. It requested a hearing before SOAH. It

presented its evidence before a trained and impartial fact finder. A fact finder who

found that no wrongdoing had occurred—a fact the Agency actually adopted as

Finding of Fact 27:

Finding of Fact No. 27: "the phone calls were about V.S.'s track performance and emotional issues. The calls did not relate to or constitute a sexual or romantic solicitation or relationship between Mr. Montalvo and V.S."

Once mere suspicions are found to be unfounded, the question becomes:

What, precisely, did Mr. Montalvo do that falls within the catch-all "unworthy to

instruct" language? What is it, in spite of the fact that nothing he did was found to

have been of ill-intent or had an adverse effect on the student in question, that

makes him a person who is not worthy to instruct the youth of the state of Texas?

The answer is: "Nothing."

30 The Agency is obviously bothered by a certain unspecified number of phone

calls made at certain unspecified times of day, for certain unspecified lengths; and

rub downs of female students by a male coach apparently make it squeamish

(despite evidence at hearing that this is not unusual). If it wants to outlaw conduct

that it finds personally offensive, it has the power to do it.

What the Agency cannot do, and should not be allowed to do, is hide behind

the assertion that it can't possibly list everything that makes one unworthy to

instruct"—not when its own position is that the number of calls per se does not

make one "unworthy," but, instead, is only a factor that may be considered in

determining whether something improper is going on.

What the Board does not have the power to do, as a matter of due process, is

adopt the phrase "unworthy to instruct" in a regulation and decide later what it

means, making it an entirely subjective concept, "with the attendant dangers of

arbitrary and discriminatory application"--especially if what it later decides is not

reasonably self-apparent to a teacher of common intelligence. See Grayned, 408

U.S. 104, 108-09, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222 (1972).

ISSUE II.

The Agency's changes fly in the face of the Findings of Fact it adopted as its own

31 The Agency acknowledges that it adopted all of the ALJ's Findings of Fact,

as well as the first six Conclusions of Law, which specifically shoot down all of its

allegations that the Code of Ethics was violated.

As mentioned previously, it is conceivable that conduct that does not offend

the Code of Ethics could fall within the "unworthy to instruct" category (assuming,

for the sake of discussion, that "unworthy to instruct" is a valid construct).

However, the Agency fails to show how the facts in this case justify a conclusion

to that effect.

Instead, the Agency argues that Mr. Montalvo's actions demonstrate "poor

judgment." (Agency Brief at 9-10.) It notes that even "the All found at least two

of his decisions to be of questionable judgment and a cause for concern."

The issue of "cause for concern" has been previously addressed. In short,

"cause for concern" is not the same thing as "unworthy to instruct," and equating

the two is the pinnacle of arbitrariness and capriciousness.

The Agency claims:

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. (Agency Brief at 9.) This is where the Agency goes far afield from reasonable decision-making:

32 (a) First, if the Agency thinks its charge is to sanction teachers who

exercise poor judgement, it needs a staff many times larger than what

it has. There is not a teacher alive, nor attorney, nor physician, nor

anyone, who never exercises poor judgment in his or her daily or

professional life.

(b) If the standard for revoking a teacher's certificate is "poor

judgment," the Agency needs to say so specifically by adopting a

Standard to that effect (and then try to defend that standard as a matter

of due process, reasonable notice of what is proscribed, or even a

matter of logic).

(c) The Appellee is unaware of a single case in which the Agency

has ever revoked a teaching certificate for exercising poor judgement

in the absence of some serious consequence flowing from it, and the

Agency did not offer one at the SOAH hearing and has not done so at

any point in the proceedings in District Court or this appeal.

(d) The issue of judgment is a matter best left to the employing

school district. If a teacher exercises poor judgment, it is not the task

of the Agency to prohibit all school districts throughout Texas from

employing an individual. "Poor judgment" means different things to different people, and specific instances are more important to some

school districts and administrators than others. Some might find that

what others consider poor judgment is not poor judgment at all, or that

the teacher's attributes as someone who reaches and inspires students

to be their best overrides an occasional lapse of judgment.

Unless a lapse of judgment is so severe that it cannot be corrected or

remediated by counseling, directives, or reprimands, exercising poor

judgment is not even cause for terminating a teacher's employment

with a school district, let alone grounds to revoke the teacher's

certification and prohibit all districts from employing that teacher. The

Commissioner of Education, the highest ranking education official in

Texas, has noted:

one instance of exercising poor judgment will not necessarily support an action of termination of employment. See e.g., Shivers v. Liberty ISD, No. 163-R3-682, p. 14 (Comm. Educ., Jan. 1985). In most instances, the best way to handle such matters is to advise the teacher that he or she has exercised poor judgment and that a recurrence of the objectionable conduct might result in the teacher's termination. In the present case, there is no reason to believe that a stern warning to that effect would not have effectively prevented a recurrence of the conduct.

Whalen v. Rock Springs ISD, No. 065-R1B-284 Comm'r Education.

1985), 1985 TX Educ. Agency LEXIS 61, *11985, at *17 (emphasis

added).

34 In the Whalen case, the Commissioner, nevertheless, affirmed the

termination because the local Board of Trustees had determined that the

substance of the teacher's comments were harmful or potentially harmful

to the students taking into account a number of factors, including the type

of community the district served. The Commissioner felt that the Board

was "closest to the situation, most familiar with the standards and

expectations of the community in which the children affected reside." Id.

at *15-16, 18.

The Commissioner noted, however:

a. that any harm stemming from "poor judgment" must be

significant, not minor, to support a termination (Id. at *18); and

b. the factors unique to the discussion of the teacher's behavior in

that case may be different in other cases due to the variety of

community standards found in the 1100 plus school districts in

Texas (Id.).

In summary, the Agency had a right to be "concerned." It had a right to

investigate. It had a right to submit its concerns and the results of its investigation

at a hearing. Even after those concerns were proven unfounded, it had the right to

express those concerns to Mr. Montalvo and tell him that it disapproved of his

judgment and to be careful not to do the same things in the future.

35 What the agency had no right to do was revoke Mr. Montalvo's teaching

certificate for exercising "poor judgment" that was unaccompanied by any actual

adverse consequence (even a minor one) to anyone or anything other than

speculation that something bad might occur in the future; and to use its speculation

to bar more than a thousand school districts in Texas from employing him,

notwithstanding the fact that each district understands its own community, its own

needs, and its own students far better than any single Agency.

ISSUE III.

The Board's application of the "unworthy to instruct" "standard" is arbitrary and capricious and not supported by substantial evidence even if the language is constitutional on its face

A. The meaning and history of "unworthy to instruct."

1. The "unworthy to instruct language" was repealed by the legislature in 1995.

As noted previously, the legislature repealed the "unworthy to instruct"

provision in 1995 when it created the State Board for Educator Certification.

Unlike 1925, a Code of Ethics for educators had been adopted that gave much

better guidance to educators about what conduct would be deemed improper than

the state superintendent had to work with in 1925.

36 After four years in which the "unworthy to instruct language" was not

present in statute or regulation in any form, the Agency added it as a regulation in

1999.

It can be argued whether this language, now that a comprehensive Code of

Ethics had been established, added anything of substance. What should not be

arguable is that nothing in the present case was outside the Code of Ethics and yet,

still, somehow, within the purview of the catchall phrase "unworthy to instruct."

2. The "unworthy to instruct" language has never been held to be applicable to actions that did not clearly make an individual "unworthy to instruct."

Assuming, for the sake of discussion, that the "unworthy to instruct"

language is today valid on its face as a regulation (as opposed to a repealed

statute), it has only ever been upheld to the extent that it was applicable to the

fraudulent issuance of teaching certificates. As addressed previously, any educator

of common intelligence should be aware that this type of fraudulent activity with

regard to teaching credentials would make one "unworthy" of holding a place of

trust and importance in the educational community.

To the same extent, the "unworthy to instruct" language might still be valid

when involving extreme and egregious conduct that is not now articulated in the

Code of Ethics. The problems with relying on this proposition, however, are two-

37 fold: (a) what actions could possibly fit within this construct, and (b) the Findings

of Fact as to Mr. Montalvo's conduct are not among them.

B. If "unworthy to instruct" applies to anyone, it is not Mr. Montalvo.

As mentioned a number of times previously, the current Code of Ethics casts

a wide shadow. It is difficult for even a creative person to come up with conduct

that would not fit within the Code of Ethics yet somehow result in a conclusion

that it made one "unworthy to instruct."

Take the conduct in Marrs, for example: fraudulently issuing bogus teaching

certificates. That is now covered by Standards 1.1 and 1.7 (19 Tex. Admin. Code

§247.2):

(A) Standard 1.1. The educator shall not knowingly engage in deceptive practices regarding official policies of the school district or educational institution.

(G) Standard 1.7. The educator shall comply with state regulations, written local school board policies, and other applicable state and federal laws.

The Code of Ethics standards concerning Ethical Conduct toward Students

(Appendix G) were well thought out, thoroughly vetted, and comprehensive. To

repeat what has been stated a number of times in this brief, what conduct could

obviously make one "unworthy to instruct" that is not included in these standards?

If, and this is a major if, there is something that does meet the parameters of

making one "unworthy to instruct" while not violating any of the standards in the

Code of Ethics, it is something that does not exist in this case.

38 The Agency claims, on page 22, that Mr. Montalvo is "unworthy to instruct

by 'crossing the bounds of an appropriate student-teacher relationship.'" It, again,

claims that this was a "lack of judgment," which has been addressed previously.

Where the Agency goes off the rails is its assertion that: [u]ltimately, whether or not improper conduct—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."

Well, yes, Agency, it does matter whether something improper actually

occurred prior to depriving a professional of his livelihood. Could there be an

exception if a finding were made, based on evidence, that the educator's intent was

to engage in or solicit an inappropriate relationship with a student?

Maybe. But that is not what we have in this case.

Speculation, which is all the Agency has after the rejection of its claims by

the All, is not the same thing as substantial evidence. And relying on sheer

speculation is as arbitrary and capricious and abusive of discretion as anything

could possibly be.

39 ISSUE IV.

The trial court exercised its discretion properly and responsibly in issuing a permanent injunction

There is no evidence that the trial court acted improperly or that it failed to

weigh the equities. The trial court determined that the Agency's decision to revoke

Mr. Montalvo's teaching certificate was not supported by substantial evidence and

was arbitrary and capricious. Under these circumstances, the equities favoring the

Agency were slight.

The trial court also heard undisputed testimony, at the Application for

Permanent Injunction hearing (Reporter's Record: 18:24-21:11), that Mr.

Montalvo:

• had taught in Rio Grande City Independent School District for 20 years; • coached track for approximately eight years; • had received consistently received exceeds expectations on his evaluations; • had never had any negative feedback in the evaluation category concerning interactions and communications with students; • was placed on leave with pay by the district when he was indicted for sexual assault; and • was reinstated by the district when he was acquitted.

So, yes, the trial court did weigh the equities, including the fact that the

school district that had employed him as a teacher for twenty years, and which

40 knew him as a person and educator by an exponential factor better than the

Agency, trusted him with its students.

There simply were no equities favoring the Agency, unless demanding a

pound of flesh while acting arbitrarily and capriciously and in spite of the

evidence, rather than because of it, is somehow considered an equity.

CONCLUSION

In conclusion, the State Board for Educator Certification has no facts on

which to rest its claim that Mr. Montalvo is "unworthy to instruct" the children of

Texas. Indeed, the Agency itself adopted Findings that rejected every one of its

claims that Mr. Montalvo had violated the Educators' Code of Ethics.

The Agency is left to argue that, despite no violations of the Code of Ethics

by Mr. Montalvo, his teaching certificate should be revoked because of the concept

of "unworthy to instruct," which is no longer found in any statute and which has

been virtually subsumed by an extensive Code of Ethics that appears to cover

anything a teacher could do that would make one "unworthy to instruct."

To the extent that the "unworthy to instruct" language is an independent

basis for revoking an educator's certificate, it must, to be constitutional, be applied

only to those cases where a person of common intelligence would understand that

his or her conduct clearly fits into that category—conduct such as fraudulently

41 issuing bogus teaching certificates that would undermine the public schools of the

state of Texas. It cannot be applied to instances where the Agency claims that an

educator used "poor judgement"—at least not in the absence of any harmful

outcome or a finding that harm was intended.

It is time for this Agency to let go of this educator and let him benefit the

children of the State of Texas as a teacher. It is not time to send a signal to all

teachers in the State of Texas that every time they make a mistake in the exercise

of their judgment that results in no harm to anyone, they will, nevertheless, be

subject to losing their teaching certificate if the State Board for Educator

Certification second guesses or overreacts to what they have done.

PRAYER

Erasmo Montalvo, Appellee, respectfully requests that this Court affirm the

Judgment of the trial court in all respects and deny all relief sought by Appellant,

the State Board for Educator Certification.

42 BRIM, ARNETT & ROBINETT, P.C. Attorneys at Law 2525 Wallingwood Drive Building 14 Austin, Texas 78746 (512) 328-0048 (512) 328-4814 (facsimile)

BY: /s/ Mark W. Robinett MARK W. ROBINETT State Bar No. 17083600

I certify that this brief complies with Tex. R. App. P. 9

CERTIFICATE OF COMPLIANCE

The word count is 9540. The word processing software used to prepare this filing and calculate the word count is Microsoft Word 2010.

/s/ Mark W. Robinett MARK W. ROBINETT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was served via the Court's ECF system to Ellen M. Sameth, attorney for Appellant State Board for Educator Certification, this 29th day of June 2015.

43 APPENDIX

A. Original Petition

B. Historical Rule for the Texas Administrative Code - 19 Texas Administrative Code §249.3

C. Texas Register - 19 Texas Administrative Code Rule §249.3 Texas Register

D. Excerpts from Education Code of: Professional Practices Commissions

E. Texas Education Code §13.046

F. Proposed Rules, December 11, 1998, 23 Tex. Reg 12615

G. Texas Administrative Code, 19 Texas Administrative Code Rule §247.2

H. Commissioner of Education Decision TAB A Original Petition TEA DOCKET NO. 5015-EC-0611

TEXAS EDUCATION AGENCY, BEFORE THE STATE BOARD EDUCATOR CERTIFICATION AND STANDARDS DIVISION, Petitioner

V. FOR

ERASMO MONTALVO, JR., Respondent EDUCATOR CERTIFICATION

ORIGINAL PETITION

Pursuant to TEX. EDUC. CODE §21.035, the Texas Education Agency, Educator Certification and Standards Division ("Petitioner-) on behalf of the State Board for Educator Certification ("the Board" or "SBEC-) tiles this Petition against ERASMO MONTALVO, JR., ("Respondent") based on alleged violations of Title 19, TEXAS ADMINISTRATIVE CODE ("TAC"). ch. 227 through 250, and in support thereof shows the following:

I. LEGAL AUTHORITY AND JURISDICTION

1. Pursuant to TEX. EDUC. CODE §21.031 and §21.041(b), SBEC is a State Board conducting its duties under the authority of the laws of the State of Texas. and rules and regulations duly promulgated thereunder. Pursuant to TEX. EDUC. CODE §21.035, SBEC's administrative functions, including the enforcement of educator standards of conduct, are provided by the Texas Education Agency, Educator Certification and Standards Division, whose address is 1701 N. Congress Ave., 5th Floor, Austin, Texas 78701-1494.

Respondent is a natural person who at all times relevant to this proceeding has held an active Texas Educator Certificate. Therefore, SBEC has jurisdiction f'or the purposes of this proceedimg as provided in 19 TAC §249.18. Respondent may be served with notice of all actions and proceedings relating to this case through Respondent's last known address in the Board records and his attorney of record:

ERASMO MONTALVO, JR. MARK W. ROBINETT 3461 Mockingbird Drive Brim, Arnett, Robinett, Conners & Rio Grande City, Texas 78582 McCormick, P.C. 2525 Wallingwood Drive, Bldg. 14 Austin, Texas 78746 Respondent is required to keep his address current under the terms of 19 TAC §230.431.

4. Pursuant to 19 TAC §249.15(a), Petitioner may take the following actions:

(a) place restrictions on the issuance, renewal, or holding of a certificate, either indefinitely or for a set term; (b) issue an inscribed or non-inscribed reprimand; (c) suspend a certificate for a set term or issue a probated suspension for a set term; (d) revoke or cancel, which includes accepting the surrender of a certificate without opportunity for reapplication for a set term or permanently; or (e) impose any additional conditions or restrictions upon a certificate that the SBEC deems necessary to facilitate the rehabilitation and professional development of the educator or to protect students, parents of students, school personnel, or school officials.

5. Pursuant to 19 TAC §249.15(b), Petitioner may order disciplinary action against a person or certificate over which Petitioner has jurisdiction upon a determination based on satisfactory evidence that:

(a) the person has conducted school or education activities in violation of law: (b) the person is unworthy to instruct or to supervise the youth of this state; (c) the person has violated a provision of the Educators' Code of Ethics; (d) 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 19 TAC §249.14; (e) the person has abandoned a contract in violation of the TEX. EDUC. CODE §21.105(c), §21.160(c), or §21.210(c); (f) the person has failed to cooperate with the Texas Education Agency (TEA) in an investigation; (g) the person has committed an act described in 19 TAC §249.12(b), §249.14(g). or §249.16(b); and/or (h) the person has violated the security or confidential integrity of a secure test by departing from the procedures established by the commissioner of education including. but not limited to. acts and omissions described in 19 TAC § 101.65.

6. Pursuant to 19 TAC §249.17(d), Petitioner must permanently revoke the teaching certificate of any educator or permanently deny the application of any applicant if, after a contested case hearing, it is determined that the educator or applicant:

a. engaged in or solicited any sexual contact or romantic relationship with a student or minor, as defined in 19 TAC §249.14(m);

Ercorno llonhilly Jr Original Petition h. possessed or distributed child pornography; c. was registered as a sex offender; d. committed criminal homicide; e. possessed without a prescription, transferred, sold, distributed, or conspired to possess without a prescription, transfer, sell, or distribute any controlled substance defined in the Texas Health and Safety Code, Chapter 481, on school property; or f. committed any offence described in TEC §21.058.

7. Petitioner may order disciplinary action pursuant to its enforcement authority under 19 TAC §247, upon a determination based on satisfactory evidence that a person has violated a provision of the Educators' Code of Ethics.

11. MATTERS ASSERTED

In support of this Original Petition and based on information and belief, Petitioner charges and alleges the following:

1. ERASMO MONTALVO, JR., Respondent, holds Texas Educator Certificate No. XXX-XX-66-13 and is subject to the jurisdiction of this Board.

Respondent's Texas Educator Certificate was in full force and effect at all times material and relevant to this Petition.

3. At all times material hereto, Respondent was employed with the Rio Grande City Consolidated Independent School District, in Rio Grande City, Texas. as a track and field coach at Rio Grande City High School.

4. Respondent is currently on paid administrative leave from Rio Grande City CISD.

5. In or around the spring of 2008, Respondent intentionally or knowingly engaged in sexual contact with "Student 1, " a person under the age of 17 years of age, on numerous occasions.

6. At or around the time in question, the spring of 2008, Student I was a student at Rio Grande City High School and a member of the track and field team coached by Respondent.

7. In or around February of 2008. Student 1 injured her hamstring while running at a track meet. Respondent took Student 1 to a bus and massaged her leg at that time.

8. As the injury did not heal, Respondent continued to massage Student I 's leg/hamstring area and would move farther and farther up her leg as he massaged her. Ultimately, Respondent's touching became inappropriate, moving up into Student l's genital area.

trawl() fontalvo. Jr 1 (animal PetitIon 9. Also during the spring of 2008, Student I. along with+It 0,—er Female students on the girls' track team, would go to Respondent's home to soak in his -hot tub.- which was actually a Jacuzzi-style bathtub in the master bathroom of his home.

10. On one of these occasions when Student 1 was alone with Respondent in his home, in or around April 2008, Respondent invited Student 1 to use his "hot tub.- He then asked her to lie on his bed so that he could massage her leg. At that time, Respondent then proceeded to engage in sexual intercourse and oral sex with Student 1.

11. Subsequently, Respondent engaged in sexual relations with Student 1 on school property in the Field 1 louse.

12. Continuing on through the spring semester of 2008, Respondent would engage in inappropriate touching of Student 1, sometimes occurring on school property.

13. During this time, Respondent told Student 1 that he had to continue to massage her because it was the only way she would perform well at the district and regional level track meets.

14. Respondent also told Student 1 that if she told the athletic trainer she was injured, the trainer would not let Student I run in the district and regional track meets.

15. Respondent also told Student I that if she told anyone of the sexual nature of their relationship that he would destroy her chances of getting a college scholarship, which he had assisted her in obtaining.

16. Further, during the spring of 2008, there were approximately 480 phone calls exchanged between Respondent and Student 1. Over 80 of these phone calls were placed after 10:00 p.m. at night.

17. Student I graduated from Rio Grande City High School in May of 2008 and left for college on a track & field scholarship that next fall.

18. In May of 2009, a college counselor notified the authorities in Starr County, Texas. that Student 1 reported to her that she had been sexually assaulted by Respondent in the spring of 2008.

19. On or about May 26. 2009, the Starr County District Attorney's office was made aware of information that a sexual assault involving Respondent had taken place on Rio Grande City CISD premises approximately one (1) year prior.

20. On or about May 27, 2009, the Rio Grande City CISD Police Department opened the case and investigation was initiated into the aforementioned events.

ErdAmo llontalvo Jr 4 Petition 21. On or about May 29, 2009. Respondent was arrested on two (2) warrants of sexual assault, both 2" degree felony offenses.

In the October 2009 term of the Starr County Grand Jury, Respondent was indicted on two (2) counts of sexual conduct against Student 1, occurring while Respondent was an employee of a public secondary school.

23. The criminal case proceeded to trial by jury on the two (2) counts of Improper Relationship between Educator and Student and Respondent was found to be "not guilty- on both counts.

24. Petitioner asserts that Respondent's conduct as outlined herein indicates that the Respondent is a person unworthy to instruct or supervise the youth of this state in violation of 19 TAC §249.15(b)(2).

25. Petitioner asserts that Respondent's conduct as outlined herein indicates that the Respondent has violated a provision of the Educators' Code of Ethics, specifically Standard 1.7, 19 TAC §247.2(b)(1)(G), by failing to comply with state regulations, written local school board policies, and other applicable state and federal laws.

26. Petitioner asserts that Respondent's conduct outlined herein indicates that the Respondent has violated a provision of the Educators' Code of Ethics, specifically Standard 3.2, 19 TAC §247.2(b)(3)(B), by knowingly treating a student in a manner that adversely affects the students' learning, physical health, mental health, or safety.

27. Petitioner asserts that Respondent's conduct outlined herein indicates that the Respondent has violated a provision of the Educators' Code of Ethics, specifically Standard 3.5, 19 TAC §247.2(b)(3)(E), by engaging in physical mistreatment of a student.

28. Petitioner asserts that Respondent's conduct outlined herein indicates that the Respondent has violated a provision of the Educators' Code of Ethics, specifically Standard 3.6, 19 TAC §247.2(b)(3)(F), by soliciting or engaging in sexual conduct or a romantic relationship with a student.

Petitioner asserts that Respondent's conduct outlined herein indicates that the Respondent has committed an act described in 19 TAC §249.14(g)(1), conduct that indicates a risk to the health, safety. or welfare of a student or minor; parent of a student, fellow employee or professional colleague.

30. Petitioner asserts that Respondent's conduct outlined herein indicates that the Respondent has committed an act described in 19 TAC §249.17(d)(1), engaging in or soliciting sexual contact or romantic relationship with a student or minor.

1:rasino .1baittrivo Jr Ortutnal l'ctition III. FAILURE TO REACH SETTLEMENT

Pursuant to 19 TAC §249.26(b)(4), Petitioner avers that the parties have failed to reach settlement of the matters asserted in this Petition.

IV. NOTIFICATION TO RESPONDENT

Pursuant to 19 TAC §249.26(b)(6), Petitioner hereby notifies Respondent of the following:

IF YOU DO NOT FILE A WRITTEN ANSWER TO THIS PETITION WITH THE TEXAS EDUCATION AGENCY ATTORNEY IDENTIFIED BELOW WITHIN 30 CALENDAR DAYS OF BEING SERVED WITH THIS PETITION, THE STATE BOARD FOR EDUCATOR CERTIFICATION MAY GRANT THE RELIEF REQUESTED IN THIS PETITION, INCLUDING REVOCATION OF YOUR CERTIFICATE BY DEFAULT. THE MATTERS ASSERTED IN THE PETITION WILL BE DEEMED ADMITTED UNLESS YOUR WRITTEN ANSWER SPECIFICALLY DENIES EACH ASSERTION PLED AND IS FILED WITHIN THE PRESCRIBED TIME PERIOD. IF YOU FILE A WRITTEN ANSWER BUT THEN FAIL TO ATTEND A SCHEDULED HEARING, THE STATE BOARD FOR EDUCATOR CERTIFICATION MAY GRANT THE RELIEF REQUESTED IN THIS PETITION, INCLUDING REVOCATION OF YOUR CERTIFICATE.

V. PRAYER

WHEREFORE, PREMISES CONSIDERED, Petitioner prays:

1. That the Administrative Law Judge enter a Proposal for Decision recommending that the Board ISSUE AN ORDER FOR A SANCTION UP TO AND INCLUDING PERMANENT REVOCATION of the Texas Educator Certificate Number XXX-XX-45-40, as authorized by 19 TAC §249.15 and §249.I 7.

That the Administrative Law Judge enter a PROPOSAL FOR DECISION containing FINDINGS OF FACT holding that the Respondent committed the acts as charged and alleged herein, CONCLUSIONS OF LAW holding that the Respondent violated the statutes and rules as charged and alleged herein, and a RECOMMENDATION that Petitioner exercise its authority pursuant to 19 TAC §249.15 and 19 TAC §249. I 7 to take the aforementioned DISCIPLINARY ACTION against the Respondent's Texas Educator Certificate; and

3. Petitioner specifically prays for any such other relief to which it may be entitled under law or equity.

kra.smo iontoh o. Jr 6 original Petition Respectfully submitted,

By: LL r-- Merle Hoffman Dover State Bar No. 00787706 Texas Education Agency 1701 N. Congress Ave. Austin, Texas 78701-1494 Tele: (512) 463-9716 Fax: (512) 463-7545

Attorney for Petitioner TEA/SBEC

I hereby certify that on the 7th day of June 2011, a true and correct copy of this Original Petition has been forwarded to:

ERASMO MONTALVO, JR. Via CMRRR #91 7199 9991 7030 1539 8741 3461 Mockingbird Drive and First Class U.S. Mail Rio Grande City, Texas 78582

MARK W. ROBINETT Via CMRRR 491 7199 9991 7030 1539 8734 Brim, Arnett, Robinett, Conners & and First Class U.S. Mail McCormick, P.C. 2525 Wallingwood Drive, Bldg. 14 Austin, Texas 78746

1/1

Merle Hoffman Dover

1:: row no IA 'It,' A. a. Jr 7 Orunnal TAB B

Historical Rule for the Texas Administrative Code - 19 Texas Administrative Code §249.3 «Back Historical Rule for the Texas Administrative Code TITLE 19 EDUCATION PART 7 STATE BOARD FOR EDUCATOR CERTIFICATION CHAPTER 249 DISCIPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED CASES SUBCHAPTER GENERAL PROVISIONS A RULE §249.3 Defmitions

The following words, terms, and phrases, when used in this chapter, shall have the following meanings, 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 certification test scores; the invalidation of a certification test registration; or evidence of a lack of good moral character or improper conduct: (A) admission to an educator preparation program; (B) certification (including certification following revocation, cancellation, or surrender of a previously issued certificate) or renewal of certification; or (C) reinstatement of a previously suspended certificate. (2) Administrative law judge (ALJ)--a person appointed by the chief judge of the State Office of Administrative Hearings (SOAR) under Texas Government Code, Chapter 2003. (3) Answer--the initial responsive pleading filed in reply to factual and legal issues raised by a petition. (4) Applicant--a party seeking any of the following from the TEA staff or the State Board for Educator Certification (SBEC): issuance of a certificate (including issuance of a new certificate following revocation, cancellation, or surrender of a previously issued certificate); renewal of a certificate; or reinstatement of a suspended certificate. (5) Cancellation--the invalidation of an erroneously issued certificate. (6) Certificate--the whole or part of any certificate, permit, approval, endorsement, or similar form of permission issued 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, §21.036, or other person designated by the chair to act in his or her absence or inability to serve. (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 certificate. (B) A "non-inscribed reprimand" is a formal, unpublished censure that does not appear on the face of the educator's virtual certificate. (36) Revocation--a sanction imposed by the SBEC permanently invalidating an educator's certificate. (37) Respondent--the party who contests factual or legal issues or both raised in a petition; the party filing an answer in response to a petition. (38) Sanction-- (A) a disciplinary action by the SBEC, including a restriction, reprimand, suspension, surrender, or revocation of a certificate; (B) a reasonable and lawful punitive measure imposed by the AU or presiding officer against a party, representative, or other participant involved in a disciplinary proceeding, hearing, or other matter under this chapter. (39) State Board for Educator Certification--the SBEC acting through its voting members 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) Surrender--an educator's voluntary, permanent relinquishment and invalidation of a particular certificate in lieu of disciplinary proceedings under this chapter and possible revocation of the certificate. (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 professional 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 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. (46) Virtual certificate--the official record of a person's certificate status as maintained on the SBEC's website.

Source Note: The provisions of this §249.3 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112 TAB C

Texas Register - 19 Texas Administrative Code Rule §249.3 Texas Register 6/22/2015 :Texas Register

Texas Register TITLE 19 EDUCATION PART 7 STATE BOARD FOR EDUCATOR CERTIFICATION CHAPTER 249 DISCIPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED CASES SUBCHAPTER A GENERAL PROVISIONS RULE §249.3 Definitions ISSUE 12/16/2011 ACTION Final/Adopted Preamble Texas Admin Code Rule

The following words, terms, and phrases, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1)Abuse--Includes the following acts or omissions:

(A)mental or emotional injury to a student or minor that results in an observable and material impairment in the student's or minor's development, learning, or psychological functioning;

(B)causing or permitting a student or minor to be in a situation in which the student or minor sustains a mental or emotional injury that results in an observable and material impairment in the student's or minor's development, learning, or psychological functioning;

(C)physical injury that results in substantial harm to a student or minor, or the genuine threat of substantial harm from physical injury to the student or minor, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline; or

(D)sexual conduct harmful to a student's or minor's mental, emotional, or physical welfare.

(2)Administrative denial--A decision or action by the Texas Education Agency staff, acting on behalf of the State Board for Educator Certification, to deny certification (including certification following revocation, cancellation, or surrender of a previously issued certificate), renewal of certification, or reinstatement of a previously suspended certificate based on the withholding or voiding of certification test scores; the invalidation of a certification test registration; evidence of a lack of good moral character; or evidence of improper conduct.

(3)Administrative law judge--A person appointed by the chief judge of the State Office of Administrative Hearings under the Texas Government Code, Chapter 2003.

(4)Answer--The responsive pleading filed in reply to factual and legal issues raised in a petition.

(5)Applicant--A party seeking issuance, renewal, or reinstatement of a certificate from the Texas Education Agency staff or the State Board for Educator Certification.

(6)Cancellation--The invalidation of an erroneously issued certificate.

htlp://texreg.sos.state.tx.us/public/regviewer$ext.RegPage?s1=R8app=14 ciir=&p_rloc=245817&p tloc=8,p_ploc=8,pg=18,p_reg=245817&ti=19&pt=7&ch=249... 1f7 6/22/2015 : Texas Register

(46)Respondent--The party who contests factual or legal issues or both raised in a petition; the party filing an answer in response to a petition.

(47)Restricted--The condition of an educator certificate that has had limitations or conditions on its use imposed by State Board for Educator Certification order.

(48)Revocation--A sanction imposed by the State Board for Educator Certification invalidating an educator's certificate.

(49)Sanction--A disciplinary action by the State Board for Educator Certification, including a restriction, reprimand, suspension, revocation of a certificate, or a surrender in lieu of disciplinary action.

(50)Serious state assessment testing violation--Failure to observe the requirements of test administration, security, and confidentiality of any assessment required by the Texas Education Code, Chapter 39, Subchapter B, in a manner that involves dishonesty or intent to affect the test score of a student, the evaluation of an educator, or the state or federal accountability rating of a school district or a campus. The term does not include benchmark tests or other locally required assessments.

(51)Solicitation of a romantic relationship--Deliberate or repeated acts that can be reasonably interpreted as the solicitation by an educator of a relationship with a student that is romantic in nature. A romantic relationship is often characterized by a strong emotional or sexual attachment and/or by patterns of exclusivity, but does not include appropriate educator-student relationships that arise out of legitimate contexts such as familial connections or longtime acquaintance. The following acts, considered in context, may constitute prima facie evidence of the solicitation by an educator of a romantic relationship with a student:

(A)behavior, gestures, expressions, or communications with a student that are unrelated to the educator's job duties and evidence a romantic intent or interest in the student, including statements of love, affection, or attraction. Factors that may be considered in determining the romantic intent of such communications or behavior, include, without limitation:

(i)the nature of the communications;

(ii)the timing of the communications;

(iii)the extent of the communications;

(iv)whether the communications were made openly or secretly;

(v)the extent that the educator attempts to conceal the communications;

(vi)if the educator claims to be counseling a student, the State Board for Educator Certification may consider whether the educator's job duties included counseling, whether the educator reported the subject of the counseling to the student's guardians or to the appropriate school personnel, or, in the case of alleged abuse or neglect, whether the educator reported the abuse or neglect to the appropriate authorities; and

(vii)any other evidence tending to show the context of the communications between educator and student;

(B)making inappropriate comments about a student's body, creating or transmitting sexually http://texreg.sos.state.tx.us/public/regviewer$ext.RegPage?s1=R&app=1&p dir=&p_rloc=245817&p tloc=&p_ploc=8,pg=1&p_reg=245817&ti=198,pt=7&c1P249... 5/7 TAB D

Excerpts from Education Code of: Professional Practices Commissions § 13.117 TEXAS EDUCATION CODE 60

math students. Such expanded opportunities shall § 13.202. Definitions be for remedial, regular, and talented and gifted In this subchapter: instruction. Therefore, local school districts are authorized and encouraged to establish such pro- (1) "Teacher" means a superintendent, princi- grams to increase both the numbers of students pal, supervisor, classroom teacher, counselor, or dedicated to the study of math and science and the other professional employee who is required to quality and quantity of instructional time in both hold a valid certificate or teaching permit. areas. (2) "Commission" means the Teachers' Pro- (c) The commissioner of education is authorized fessional Practices Commission established by and directed to select school districts of various this subchapter. types to conduct pilot program studies to determine (3) "Code of ethics and standard practices" the most effective models for implementation of means the rules, regulations and standards of this program. Such pilot program studies shall be conduct which have been adopted and promul- conducted during the 1984-85 biennium. gated by the commission pursuant to Section (d) The commissioner of education, upon comple- 13.210 of this code. tion of successful pilot program studies shall publish [Acts 1971, 62nd Leg., p. 1479, ch. 405, § 2, eff. May 26, and disseminate to all school districts model pro- 1971.] grams to achieve the goals of this subchapter. (e) The commissioner of education shall report § 13.203. Professional Practices Commission the results of the pilot studies to the 69th Legisla- ture and may make recommendations for the inclu- There is hereby created a Teachers' Professional sion of such programs in the Foundation School Practices Commission consisting of 15 members se- Program. lected from the several professional groups, as fol- (f) Local school districts may volunteer for the lows: pilot studies and, if selected by the commissioner to 3 elementary classroom teachers participate, are authorized and encouraged to pro- 3 secondary classroom teachers vide an amount of up to $5,000 as supplemental pay for each math and science teacher selected to 2 counselors participate in the pilot programs. Such funds shall 1 elementary principal be included in the participating teacher's regular 1 secondary principal payroll. (g) The commissioner of education, if funds are 1 supervisor available either through the Foundation School 1 superintendent (1,000 or more teachers) Program or through various regional service center 1 superintendent (fewer than 1,000 teachers) grants or funds, may forward funds to the local participating districts in the pilot programs to assist 1 junior college teacher in local funding of these programs. In addition, 1 senior college teacher (engaged in teacher local school districts are encouraged to seek private education) funding, including foundation support to pursue the [Acts 1971, 62nd Leg., p. 1479, ch. 405, § 2, eff. May 26, goals of this subchapter. 1971.] [Acts 1983, 68th Leg., p. 4808, ch. 845, § 1, eff. Aug. 29, 1983.] § 13.2031. Application of Sunset Act [Sections 13.118 to 13.200 reserved for expansion] The Teachers' Professional Practices Commission is subject to the Texas Sunset Act; 1 and unless SUBCHAPTER D. TEACHERS' PROFESSIONAL continued in existence as provided by that Act the PRACTICES commission is abolished effective September 1, 1989. [Acts 1977, 65th Leg., p. 1854, ch. 735, § 2.156, eff. § 13.201. Responsibilities of the Teaching Profes- Aug. 29, 1977.] sion ' Vernan's Ann.Civ.St. art. 5429k. Teaching is hereby declared to be and is recog- nized as a profession. The members of such profes- § 13.204. Qualifications of Members sion shall accept responsibilities in development and To be eligible for membership on the commission, promotion of high standards of ethics, conduct, and a person must be actively engaged in teaching, fully professional performance and practices of persons certified for the position he holds, and must have at engaged in the practice of such profession in this least five years' teaching experience in Texas, in- state. cluding the two years immediately preceding nomi- [Acts 1971, 62nd Leg., p. 1479, ch. 405, § 2, eff. May 26, nation and appointment. 1971.] [Acts 1971, 62nd Leg., p. 1479, ch. 405, § 2, eff. May 26, 1971.] 61 TEXAS EDUCATION CODE § 13.211 60 § 13.205. Appointment § 13.210. Adoption of Code of Ethics and Standard The members of the commission shall be appointed Practices by the governor, subject to confirmation by the (a) After public hearings at which associations senate. The governor shall request appropriate and individuals representing the teaching profession ndent, princi- and other interested persons shall have full opportu- counselor, or statewide professional organizations of teachers and/or school administrators to submit a list of three nity to submit and request adoption of all or part of s required to the provisions of unofficial codes of ethics that have g. permit. qualified nominees for vacancies within their respec- tive professional groups on the commission; such been adopted by state and national associations of :achers' Pro- nominations shall be advisory. members of the teaching profession, and to support, tablished by [Acts 1971, 62nd Leg., p. 1479, ch. 405, § 2, eff. May 26, oppose, or request amendments to proposals, the 1971.] commission shall develop and adopt a "code of ethics .d practices" and standard practices" which shall regulate and standards of govern the conduct of members of the profession. § 13.206. Terms of Office and promul- (b) The code of ethics and standard practices t to Section One-third of the members of the commission first adopted by the commission shall include standards of appointed shall be selected to serve for a term of one professional teaching practices and professional per- eff. May 26, year; one-third to serve for a term of two years; formance, and standards of ethical conduct of mem- and the remaining one-third for a term of three bers of the teaching profession toward other mem- years; and members appointed for succeeding terms bers of the profession, parents, students, and the ttission shall serve for terms of three years. No person shall community. Professional serve for more than two consecutive terms as a (c) The professional standards developed by the members se- member of the commission. commission shall be submitted by the Texas Educa- oups, as fol- [Acts 1971, 62nd Leg., p. 1480, ch. 405, § 2, eff. May 26, tion Agency to all active certificated professional 1971.] personnel in a referendum to determine approval or disapproval of each individual standard and the com- § 13.207. Expenses mission shall have available the results of the refer- Members of the commission shall serve without endum and give them consideration before finally pay, but shall be reimbursed for their actual and adopting the standards. reasonable traveling expenses in attendance on com- (d) The commission shall likewise have power to mission meetings, and in attending meetings of com- revise or adopt amendments to the code of ethics mittees of such commission. and standard practices. [Acts 1971, 62nd Leg., p. 1480, ch. 405, § 2, eff. May 26, (e) The code of ethics and standard practices orig- achers) 1971.] inally adopted by the commission, and in like manner A teachers) any amendment thereto or revision thereof, shall § 13.208. Officers; Meetings; Rules become effective on the first day of September The commission shall annually select a chairman, following the expiration of 90 days after the full in teacher text of the professional standards so adopted by the vice chairman, and secretary. The commission shall commissson or the amendment or revision so adopted meet not less than three times each year in Austin eff. May 26, shall have been filed with the Commissioner of Edu- at a place, time, and hour determined by the com- cation of the State of Texas. No professional stan- mission (at least 10 days' notice in writing by chair- dards disapproved in the referendum vote shall be man shall constitute proper notice). A majority_ adopted. Commission shall constitute a quorum, and a majority of such quorum shall have authority to act upon any matter (f) It shall be the duty of the commissioner of and unless education on request of any member of the profes- hat Act the properly before the commission. The commission fiber 1, 1989. shall adopt its own rules of order and procedure not sion, licensed in this state, to furnish him a copy of inconsistent with this subchapter and shall hold the code of ethics and standard practices, together § 2.156, eff. meetings pursuant to the provisions of this subchap- with amendments then in effect. ter. [Acts 1971, 62nd Leg., p. 1480, ch. 405, § 2, eff. May 26, [Acts 1971, 62nd Leg., p. 1480, ch. 405, § 2, eff. May 26, 1971.] 1971.] § 13.211. Unprofessional Practice commission, A violation of any rule or provision of the code of rching, fully § 13.209. Privileged Status of Members ethics and standard practices adopted in conformity lust have at with this subchapter shall be deemed to be "unpro- Texas, in- Members of the commission shall be privileged in their utterances while acting in good faith in the fessional practice," which shall constitute grounds acting nomi- for suspension or revocation of the teaching certifi- course of their duties. [Acts 1971, 62nd Leg., p. 1480, ch. 405, § 2, eff. May 26, cate of the member, which grounds shall be addition- eff. May 26, al to those specified in Section 13.046 of this code; 1971.] 13.211 TEXAS EDUCATION CODE 6:

or the member may be warned or reprimanded for (b) In cases where the commission, or the pane such violation, if in the judgment of the commission- thereof hearing the matter, shall recommend suspen• er of education the violation is not of sufficient sion or revocation of the certificate of any member gravity to require suspension or revocation of the the commissioner of education may dismiss the com- teaching certificate. plaint on the basis of the record certified to him, ox [Acts 1971, 62nd Leg., p. 1481, ch. 405, § 2, eff. May 26, may set the matter for hearing and disposition by 1971.] the commissioner of education; and from his final decision in the matter, after hearing, appeal shall lie § 13.212. Advisory Function of Commission to the State Board of Education. The party charged The commission shall act in an advisory capacity by the complaint may appeal the decision of the to the state commissioner of education and to the State Board of Education to the district court of the State Board of Education in matters of interpreta- county of his residence. The trial on appeal in the tion and enforcement of the code of ethics and district court shall be conducted de novo. standard practices. (c) Nothing in this section contained is intended to [Acts 1971, 62nd Leg., p. 1481, ch. 405, § 2, eff. May 26, bind the commissioner of education to adopt the 1971.] findings and recommendations of the commission, or any panel thereof. § 13.213. Complaint, Notice, Hearing, Recommen- dations (d) The commissioner of education shall have pow- er to adopt rules of procedure (subject to approval of (a) The commission shall be authorized to receive the State Board of Education) for the conduct of written complaints from any certified teacher of hearings before him pursuant to this subchapter. alleged violation by any member of the profession of any rule or provision of the code of ethics and [Acts 1971.] 1971, 62nd Leg., p. 1481, ch. 405, § 2, eff. May 26, standard- practices, and may hear the matter en bane, or may refer the matter to a committee of the § 13.215. Appeals commission, composed of three of its members, for hearing, as it may order. In all appeals prosecuted in any of the courts of this state pursuant to the provisions of this subchap- (b) Upon receipt of a complaint, the commission ter, such trials shall be de novo as that term is used shall give to the member against whom the com- and understood in appeals from justice of the peace plaint is made at least 15 days' notice of the nature courts to county courts. When such an appeal is of the complaint, and the time and place at which filed and the court thereby acquires jurisdiction, all the commission, or a panel thereof, will hear the administrative or executive action taken prior there- matter, such notice to be given by registered mail to shall be null and void and of no force and effect, addressed to the member. and the rights of the parties thereto shall be deter- (c) At any hearing before the commission, or be- mined by the court upon a trial of the matters in fore a panel of the commission, the member com- controversy under rules governing the trial of other plained of shall be entitled to produce witnesses in civil suits in the same manner and to the same his behalf, and shall have a right to be represented extent as though the matter had been committed to by counsel. After hearing (which shall be private the courts in the first instance and there had been unless the party affected requests a public hearing), no intervening administrative or executive action or the commission, or the hearing panel, shall make decision. Under no circumstances shall the substan- findings and recommendations whether the com- tial evidence rule as interpreted and applied by the plaint shall be dismissed or whether the complaint courts of Texas in other cases ever be used or shall be heard by the commissioner of education. applied to appeals prosecuted under the provisions of (d) The commission or panel thereof hearing the this subchapter. matter shall file its recommendations with the com- [Acts 1971, 62nd Leg., p. 1482, ch. 405, § 2, eff. May 26, missioner of education and shall also file with him a 1971.] transcript of any evidence presented before it. [Acts 1971, 62nd Leg., p. 1481, ch. 405, § 2, eff. May 26, § 13.216. Strikes, etc. 1971.] Any certified teacher who violates the provisions of Chapter 135, Acts of the 50th Legislature, 1947 § 13.214. Action of Commissioner on Complaints (Article 5154c, Vernon's Texas Civil Statutes), shall (a) In cases wherein the commission, or the panel be suspended by the commissioner of education. thereof hearing the matter, has recommended dis- [Acts 1971.] 1971, 62nd Leg., p. 1482, ch. 405, § 2, eff. May 26, missal of the complaint, the commissioner of educa- tion may dismiss the complaint without further § 13.217. Right to Join or Not to Join Professional hearing. No appeal shall lie from the action of the Association commissioner of education in dismissing a complaint Nothing in this subchapter shall abridge the right hereunder. of any certified teacher to join any professional TAB E

Excerpts from Education Code of: Professional Practices Commissions § 13.046 TEXAS EDUCATION CODE

§ 13.046. Suspension and Cancellation of Certifi- shall receive from such district, a contract that cates either a "probationary contract" or a "continuii (a) Any teacher's certificate issued under the pro- contract" in accordance with the provisions of tl visions of this code or under any previous statute subchapter if the school board chooses to offer sui relating to the certification of teachers may be sus- teacher a "probationary contract" or a "continuii pended or cancelled by the state commissioner of contract." All such contracts shall be in writing, education under any one or more of the following such form as may be promulgated by or approved 1 circumstances: the commissioner of education, and shall embody ti terms and conditions of employment hereinafter se (1) on satisfactory evidence that the holder is forth, and such other provisions not inconsister conducting his school or his teaching activities with this subchapter as may be appropriate. in violation of the laws of this state; [Acts 1969, 61st Leg., p. 2925, ch. 889, § 1, eff. Sept. 1, 196 (2) on satisfactory evidence that the holder is Acts 1971, 62nd Leg., p. 1474, ch. 405, §§ 2, 54(1).] a person unworthy to instruct the youth of this state; or § 13.102. Probationary Contract (3) on complaint made by the board of trus- Any person who is employed as a teacher by an tees that the holder of a certificate after enter- school district for the first time, or who has not beef ing into a written contract with the board of employed by such district for three consecutive trustees of the district has without good cause school years subsequent to August 28, 1967, shall b( and without the consent of the trustees aban- employed under a "probationary contract," whicl-, doned the contract. shall be for a fixed term as therein stated; provided, that no such contract shall be for a term exceeding (b) Before any certificate shall be suspended or three school years beginning on September 1 next cancelled the holder shall be notified and shall have ensuing from the making of such contract; and an opportunity to be heard. Any person whose provided further that no such contract shall be made certificate is suspended or cancelled by the state which extends the probationary contract period be- commissioner of education shall have the right of yond the end of the third consecutive school year of appeal to the State Board of Education. such teacher's employment by the school district, (c) The state commissioner of education shall have unless the board of trustees determines and recites the authority, upon the presentation of satisfactory that it is in doubt whether the particular teacher evidence, to reinstate any teacher's certificate sus- should be given a continuing contract, in which pended or cancelled under the provisions of this event a probationary contract may be made with section. On a refusal of the commissioner so to such teacher for a term ending with the fourth reinstate a certificate, the applicant shall have the consecutive school year of such teacher's employ- right of appeal to the State Board of Education. ment with the school district, at which time the (d) The state commissioner of education may sus- employment of such teacher by such school district pend a teacher's certificate under the terms of this shall be terminated, or such teacher shall be em- section for a period not to exceed one year. ployed under a continuing contract as hereinafter (e) The state commissioner of education shall have provided. the right to reprimand a teacher, rather than to [Acts 1969, 61st Leg., p. 2925, ch. 889, § 1, eff. Sept. 1, 1969; suspend or cancel that teacher's certificate, in those Acts 1971, 62nd Leg., p. 1474, ch. 405, §§ 2, 54(1).] cases the commissioner deems appropriate. A repri- mand shall not be appealable. § 13.103. Probationary Contract: Termination The board of trustees of any school district may [Acts 1969, 61st Leg., p. 2794, ch. 889, § 1, eff. Sept. 1, 1969; terminate the employment of any teacher holding a Acts 1971, 62nd Leg., p. 1474, ch. 405, § 2, eff. May 26, probationary contract at the end of the contract 1971; Acts 1979, 66th Leg., p. 666, ch. 294, § 1, eff. Aug. period, if in their judgment the best interests of the 27, 1979.] school district will be served thereby; provided, that [Sections 13.047 to 13.100 reserved for expansion] notice of intention to terminate the employment shall be given by the board of trustees to the teacher on or before April 1, preceding the end of the SUBCHAPTER C. TEACHERS' EMPLOYMENT employment term fixed in the contract. In event of CONTRACTS failure to give such notice of intention to terminate within the time above specified, the board of trus- § 13.101. Probationary or Continuing Contract tees shall thereby elect to employ such probationary teacher in the same capacity, and under probation- Each teacher hereafter employed by any school ary contract status for the succeeding school year if district in this state shall be employed under, and the teacher has been employed by such district for TAB F

Proposed Rules, December 11, 1998, 23 Tex. Reg 12615 i 1. 81 Revocation-a sanction imposed by the board perma- This chapter shall symts•1.cfcrrsche pffi c nently invalitiating_an txlucator's certificate. on or after the effective date of this chums Oct) Respondent-the oarty who contests factual or legal (d This chapter does not apply to matters related to the issues or both raised In a petition; the party fillouni answer in pmposal or adoption of hoard rules under the APA or to internal response to a petition. personnel policies or practices of the executive director or the board. The provisions of this chapter may not be used to seek sanctions 0_21 Sanction- against a member of the board or the agency's staff acting in that (A) a disciplinary action by the board. including a re- capacity. suiction. reprimand, suspension, surrender, cancellation, or revocation §240.5., Proposes. of n certificate; The purposes of this chapter are as follows: (B) a reasonable and lawful punitive measure imposed by the AU or presiding officer against a party, representative, or (11 to protect the safety and welfare of Texas schoolchil- other participant involved in a disciplinary proceeding. hearing. or dren and school personnel• other matter under this chapter. c.n . to ensure educators and applicants are morally fit and (51) Staff-employees of the board as a state agency and worthy to instruct or to supervise the youth of the state; hired by the executive director. (111 to regulate and to enforce the standards of conduct of (,51) Surrender-an educator's vol until ry,permnitent relin- educators and applicants; quishment and invalidation of a_panicular certificate in lieu of disci- f.41 to provide for disciplinary proceedings in conformity plinary proceedings under this chapter and possible revocation of the with the APA and the rules of practice and procedure of the office., certificate. g) to enforce an educator's code of ethics: (53), Suspension or suspended}-a sanction imposed by the board invalidating n particular certificate until rein- (Ail to fairly and efficiently resolve disciplinary proceed- stated by the board. ings at the least expense possible to the parties and the state;

4 Test administration rules and procedures-rules and (L2 .2) to promote the development of legal precedents procedures governing professional examinations administered by the through board decisions to the end that disciplinary proceedings may board through the staff and a test contractor, including policies, be justly resolved; and regulations, and procedures set out in a test registration bulletin. al to provide for regulation and general administration (111 Unworthy to instruct or to supervise the youth of this pursuant to the board's enabling statutes. state-the determination that a person is unfit to hold a certificate under 12494 Construction. Subchapter B, Chapter 21, of the Act or to be allowed on a school in) This chapter shall be liberally construed in conformity campus under the auspices of an educator preparation program. with the APA and the rules of practice and procedure of the office so §249.4. Applicability. as to achieve the purposes for which it was adopted, without changing the statutory jurisdiction, powers, or authority of the board. La_l In conjunction with the rules of practice and procedure of the office (I Texas Administrative Code Chapter 155 (relating "Includes" and "including" are terms of enlargement and to Rules of Procedure)) and other applicable law, this chapter shall not or limitation or exclusive enumeration, and use of the terms, does govern disciplinary matters before the hoard, including the following not create a presumption that components not expressed are excluded, proceedings: ita If any provision of this chapter is declared invalid by a (11 sanctions sought against a certificate holder: court of competent jurisdiction, such invalidity shall not affect other provisions of this chapter that can be applied without the invalid i:_ 21 enforcement of the code of ethics; provision. To that end, the board declares the provisions of this apals of administrative denials; chapter to be severable. (4) appeals of the administmlive cancellation or withhold- 4249.7. SiRtuatire Antborihy Seal. ingof test scores areci violation of test administration rules; The board may delegate to the chair the authority to sign ta reinstatement of a suspended certificate; on behalf of a majority of the board members a decision made or order issued under this chapter. 01 removal or modification of a sanction other than revocation, cancellation, or surrender; (t?) As provided by this chapter, director ctor may sign final orders dismissing cases by agreement of the parties or by (.71 complaints of contract abandonment filed with the non-suit of the petitioner as well us those relating to other matters as limey pursuant to §§21.105(), 21.160(c), or 21.210(c), of the Act; provided by this chaos and (el The board and executive director may maintain a seal to sanctions sou ht aaainst a certificate for the holder's authenticate their official acts under this chapter, including certifying knowing failure to report criminal history or other information copies of records showing decisions or orders of the board or the required to be reported under Subchapter C, Chapter 22, of the Act; executive director. The seal shall have a star with five points and the Subchapter B, Chapter 261, of the Texas Family. Code; or this chnier. words "State Board for Educator Certification" on it. (t) The office shall conduct all contested case hearingtheld p249.8. Ajdreizasrolkiltjytigst under this chapter. Unless otherwise provided in this chapter. no agreement between parties or their representatives related to a matter under this chapter

PROPOSED RULES December 11, 1998 23 TexReg 12615 TAB G

Texas Administrative Code, 19 Texas Administrative Code Rule §247.2 <>

TITLE 19 EDUCATION PART 7 STATE BOARD FOR EDUCATOR CERTIFICATION CHAPTER 247 EDUCATORS' CODE OF ETHICS RULE §247.2 Code of Ethics and Standard Practices for Texas Educators

(a) Statement of Purpose. The Texas educator shall comply with standard practices and ethical conduct toward students, professional colleagues, school officials, parents, and members of the community and shall safeguard academic freedom. The Texas educator, in maintaining the dignity of the profession, shall respect and obey the law, demonstrate personal integrity, and exemplify honesty. The Texas educator, in exemplifying ethical relations with colleagues, shall extend just and equitable treatment to all members of the profession. The Texas educator, in accepting a position of public trust, shall measure success by the progress of each student toward realization of his or her potential as an effective citizen. The Texas educator, in fulfilling responsibilities in the community, shall cooperate with parents and others to improve the public schools of the community.

(b) Enforceable Standards.

(1) Professional Ethical Conduct, Practices and Performance.

(A) Standard 1.1. The educator shall not knowingly engage in deceptive practices regarding official policies of the school district or educational institution. (B) Standard 1.2. The educator shall not knowingly misappropriate, divert, or use monies, personnel, property, or equipment committed to his or her charge for personal gain or advantage. (C) Standard 1.3. The educator shall not submit fraudulent requests for reimbursement, expenses, or pay. (D) Standard 1.4. The educator shall not use institutional or professional privileges for personal or partisan advantage. (E) Standard 1.5. The educator shall neither accept nor offer gratuities, gifts, or favors that impair professional judgment or to obtain special advantage. This standard shall not restrict the acceptance of gifts or tokens offered and accepted openly from students, parents, or other persons or organizations in recognition or appreciation of service. (F) Standard 1.6. The educator shall not falsify records, or direct or coerce others to do so. (G) Standard 1.7. The educator shall comply with state regulations, written local school board policies, and other applicable state and federal laws. (H) Standard 1.8. The educator shall apply for, accept, offer, or assign a position or a responsibility on the basis of professional qualifications.

(2) Ethical Conduct Toward Professional Colleagues. (A) Standard 2.1. The educator shall not reveal confidential health or personnel information concerning colleagues unless disclosure serves lawful professional purposes or is required by law. (B) Standard 2.2. The educator shall not harm others by knowingly making false statements about a colleague or the school system. (C) Standard 2.3. The educator shall adhere to written local school board policies and state and federal laws regarding the hiring, evaluation, and dismissal of personnel. (D) Standard 2.4. The educator shall not interfere with a colleague's exercise of political, professional, or citizenship rights and responsibilities. (E) Standard 2.5. The educator shall not discriminate against or coerce a colleague on the basis of race, color, religion, national origin, age, sex, disability, or family status. (F) Standard 2.6. The educator shall not use coercive means or promise of special treatment in order to influence professional decisions or colleagues. (G) Standard 2.7. The educator shall not retaliate against any individual who has filed a complaint with the SBEC under this chapter.

(3) Ethical Conduct Toward Students. (A) Standard 3.1. The educator shall not reveal confidential information concerning students unless disclosure serves lawful professional purposes or is required by law. (B) Standard 3.2. The educator shall not knowingly treat a student in a manner that adversely affects the student's learning, physical health, mental health, or safety. (C) Standard 3.3. The educator shall not deliberately or knowingly misrepresent facts regarding a student. (D) Standard 3.4. The educator shall not exclude a student from participation in a program, deny benefits to a student, or grant an advantage to a student on the basis of race, color, sex, disability, national origin, religion, or family status. (E) Standard 3.5. The educator shall not engage in physical mistreatment of a student. (F) Standard 3.6. The educator shall not solicit or engage in sexual conduct or a romantic relationship with a student. (G) Standard 3.7. The educator shall not furnish alcohol or illegal/unauthorized drugs to any student or knowingly allow any student to consume alcohol or illegal/unauthorized drugs in the presence of the educator.

Source Note: The provisions of this §247.2 adopted to be effective March 1, 1998, 23 TexReg 1022; amended to be effective August 22, 2002, 27 TexReg 7530 TAB H

Commissioner of Education Decision 1985 TX Educ. Agency LEXIS 61 Copyright (c) 1985 Texas Education Agency July 10, 1985; July 10, 1985 DOCKET NO. 065-R1B-284

Reporter 1985 TX Educ. Agency LEXIS 61

LA WANDA WHALEN ; v. ; ROCKSPRINGS INDEPENDENT SCHOOL DISTRICT

Core Terms

teacher, terminate, sexual, teach, sex education, classroom, school district, inappropriate, intercourse, educational purposes, homesteader, masturbate, emotional, reproduce, notice, rubber, sex

Panel: 1*11 W. N. KIRBY, COMMISSIONER OF EDUCATION

Opinion DECISION OF THE COMMISSIONER Statement of the Case

La Wanda Whalen, Petitioner, brings this appeal from a decision of the Board of Trustees of Rocksprings Independent School District (RISD), Respondent, to terminate Petitioner's contract during the first year of its two year term. Petitioner is represented by R. Emmett Harris, Attorney at Law, Uvalde, Texas. Respondent is represented by Judy Underwood, Attorney at Law, Austin, Texas. A hearing on the merits of Petitioner's appeal was held in Austin, Texas on June 5 and June 25, 1984, before Rebecca M. Elliott, the Hearing Officer appointed by the State Commissioner of Education. On November 30, 1984, the Hearing Officer issued a Proposal for Decision recommending to the State Commissioner of Education that Petitioner's appeal be denied. Our records reflect that a copy of the Proposal for Decision was received by both parties. No exceptions to the proposal were filed. Findings of Fact After due consideration of the evidence and matters officially noticed, in my capacity as State Commissioner of Education, I make the following Findings of Fact: 1.It is uncontested that Petitioner was employed [*2] by Respondent under a term contract during the 1983-84 school year. 2. It is uncontested that Petitioner's assignment included teaching Life Science to seventh grade students. A unit on sex education was a part of the course. (Tr. Vol 1: 20-21) 3. It is uncontested that Petitioner was terminated on November 22, 1983 by the Board of Trustees of Rocksprings ISD. 4. It is uncontested that Respondent based its decision to terminate Petitioner on a finding by the Board that on September 28 and 29, 1983, Petitioner made inappropriate comments to her seventh grade science class concerning sexual matters and had done so with an inappropriate amount of "levity and humor." The Board found that the following comments were made:

(A) On or about September 28, 1983, Ms. Whalen suggested that, should one of the boys in her class desire additional information concerning the male ejaculatory process, he should go home, lock the door to his restroom and masturbate. Ms. Whalen also suggested that two other male students in the room follow the same course.

(B) Ms. Whalen, on or about that same date, entered into an unnecessarily graphic description of homosexual intercourse.

(C) On or about the same [*3] date, Ms. Whalen, in response to a question concerning prophylatic devices, suggested that students should go behind the school district gymnasium if they had never seen a "rubber."

MARK ROB I N ETT Page 2 of 5 1985 TX Educ. Agency LEXIS 61, *4

(See Respondent's Original Answer and letter dated November 9, 1983 from Donald Henslee, for Respondent, to Jay Brim, original counsel for Petitioner.) 5. In August, 1983, Petitioner was told by her principal, Mr. Ronald Kelly, that before she had any discussion on sex education, he would meet with her and the Home Economics teacher to revamp that unit and that some changes needed to be made, including:

(1) Separating the class by gender, with one group being taught by Petitioner and the other by the Home Economics teacher; and

(2) Developing a standard unit which would be presented to the Board for its approval.

(See Tr. Vol. 1: 20-21, 48, 116-17). The unit on sex education was not scheduled until the spring semester. (Tr. Vol. 1: 21). 6. On September 28 and 29, 1983, Petitioner became involved in a question and answer session with her fifth period science class in which she gave the following responses to questions propounded by her seventh-grade students concerning sexual activities and related [*4] matters.

(1) In response to a series of questions about AIDS and its transmission, Petitioner told her class that the disease was transmitted by homosexuals through anal intercourse. Petitioner further explained the mechanics of the physical contact, stating that one man puts his penis into the anus of another man. Petitioner also advised her class that the disease was transmitted through the mixing of blood and feces which resulted from the tearing of tissue during the act of intercourse. (See Tr. Vol. 1: 27, Vol 2: 52, 105, 201).

(2) Petitioner answered one student's question about what a "rubber" was by stating that it was either an animal skin or a rubber sheath placed over the male penis to prevent venereal diseases. (See Tr. Vol 1: 28). Petitioner also sketched a large condom on the board (Tr. Vol. 1: 28) and advised the child who asked what a "rubber" looked like that the prophylactic device could be found on the ground behind the school gymnasium or at the rodeo grounds. (See Tr. Vol. 1: 22, 53, 79, 105).

(3) Petitioner instructed one male student that if he wanted to know when sperm was produced he should go home, lock himself in the bathroom and masturbate. (See Tr. Vol. [*5] 2: 19-20, 37-38, 54, 106, 128, 169, 204).

(4) Petitioner answered a question about how one person could satisfy herself or give pleasure to herself without a member of the opposite sex by stating that a girl could "finger" herself. (Tr. Vol. 1: 120, 129).

7. The discussion on sexual matters was prompted by questions from a student regarding "reproduction." This term had been listed as one of the life processes in response to a test question being reviewed. The test questions concerned a unit of study in which the children were determining how to differentiate between living and nonliving objects in a hypothetical situation. Reproduction had been simply defined in the text as the production of offspring. (Tr. Vol. 1: 24-25, 47). 8. Petitioner continued the discussion again on Thursday, September 29, 1983, for the entire class period with the focus of the discussion on the more physiological aspects of reproduction. (Tr. Vol. 1: 36). 9. The questions discussed on September 28 and 29 had nothing to do with the subject matter in the text but were'just life questions in general." (Tr. Vol. 1: 53). 10. At a football game on September 29, Principal Kelly was advised by a parent of one [*6] of the children in Petitioner's class that there had been language and expressions used in the class that she did not want her child to hear. (Tr. Vol. 1: 74). 11. Petitioner was told on September 30, 1983, by Principal Kelly, that he had received a phone call from a parent concerning the discussions and that Petitioner was not to discuss sex anymore until the program was revamped. (Tr. Vol. 1: 43-44, 80). 12. Superintendent Connel received a complaint on September 30 from a parent reporting the use of bad language in the science class. (Tr. Vol. 1: 80). He requested Mr. Kelly to check out the allegation. 13. On Friday afternoon, September 30, Mr. Kelly met with the parent who had contacted Mr. Connel. The parent described the language used in the class as "gutter language" and specifically informed him that the words "queer" and "cunt" had been discussed. (Tr. Vol. 1: 81). 14. During a varsity football game on Friday night, September 30, Mr. Kelly was approached by yet another parent whose

MARK ROBINETT Page 3 of 5 1985 TX Educ. Agency LEXIS 61, *6

son was in Petitioner's class. The father told Mr. Kelly that Petitioner had advised another young man in the class that if he wanted to find out what masturbation was that he should go in the [*7] bathroom and lock the door. (Tr. Vol. 1: 84). 15. Principal Kelly was told by members of the community, both Anglo and Mexican-American, that they did not want language and instruction like that used and given by Petitioner in her class to be continued in the schools. (Tr. Vol. 1: 101). 16. On Friday, October 7, 1983, Petitioner was suspended with pay pending a hearing by the Board of Trustees on November 22, 1983. (Tr. Vol. 1: 30). 17. The Board of Trustees held a hearing on November 22, 1983 to hear testimony regarding the allegations against Petitioner. The Board then terminated Petitioner for the discussions she had held on September 28 and 29, 1983 with her seventh grade science class. (See Transcript of Proceeding before Rocksprings Independent School District, filed in this appeal by stipulation of both parties). Discussion In her appeal before the Commissioner of Education, Petitioner contends that she was terminated by the Rocksprings Board of Trustees in retaliation for engaging in constitutionally protected speech and that the action of Respondent in doing so was without legal justification or basis and was unlawful and improper. The parties agree that the sole reason for [*8] terminating the employment relationship was a two-day discussion Petitioner participated in on September 28 and 29, 1984, in which sexually explicit information was given out by Petitioner and in which Petitioner made comments to her class regarding sexual activity which the Board felt were inappropriate. Throughout the hearing before the Agency, Petitioner has denied making the statements and has suggested that the students misconstrued her explanations. However, the seven students who testified were convincing in their accounts of the two-day discussion. (See Finding of Fact No. 6). Petitioner, then, must demonstrate that the statements she made were indeed protected and form an illegal basis for her discharge. Because the statements were made in the classroom, Petitioner's claim of protected speech is actually one of academic freedom, a right recognized under the First and Fourteenth Amendments. See Webb v. Lake Mills Community School District. 344 F Sapp. 79/. 799 (N. D. Iowa 1972). The classroom teacher cannot be made to "simply read from a script prepared or approved by the board." Carl- v. Bd. of Ed. Arapahoe Sch. Dist, 598 F2d 535, 543 (10th Cir 1979), [*9] On the other hand, although teachers "have some freedom in the techniques to be employed, they [do not] have unlimited liberty as to structure and content of the courses, at least at the secondary level." Id. The court in Webb also recognized that the state has an interest in limiting the discretion of a teacher, and that its interest grows stronger as the age of the student decreases. "Thus, the Fourteenth and First Amendments do not necessarily give teachers of younger students the same academic freedom' that they give teachers of college students." 344 F So pp. at 799. In addition, the teaching methods employed must be reasonably relevant to the subject matter the teacher is employed to teach. Id, at 805. Academic freedom, then, is not an absolute right and has a dual nature:

(1) The substantive right of a teacher to choose a teaching method which serves a demonstrated educational purpose; and

(2) The procedural right of a teacher not to be discharged for the use of a teaching method which is not proscribed by a regulation and as to which it was not shown that the teacher should have had notice that its use was prohibited.

[*10] It is concluded that, for Petitioner to prevail on her claim, she must show that her classroom discussion on September 28 and 29, 1983, was "reasonably relevant" to the subject matter she was employed to teach, and that the statements had both a demonstrated educational purpose and were not proscribed by an unlawful regulation. In the instant case, Petitioner was terminated for making the three specific comments found in Finding of Fact No. 6 (1), (2), and (3). There was no evidence adduced at the hearing which would indicate that the discussion on homosexual intercourse, masturbation, or "rubbers" had any relevance to the unit of study on "life processes." Further, the relevancy of the comments to the term "reproduction" as defined in the text is remote. Even considering the unit on sex education which was authorized for study at a later time, the comments were too inappropriate to be "reasonably relevant" to a seventh-grade science class. The principal had indicated that the class was to be separated by gender when the topic was discussed and that the unit would be "revamped." (See Finding of Fact No. 5). Obviously, Respondent intended for the discussion on sex to be limited and [*11] to be handled in a delicate manner. In crossing the line from giving simply the physiological facts of reproduction to discussing the "how to," Petitioner assumed the burden of demonstrating that her comments were reasonably relevant to the course. She has failed to meet that burden. Even if it is conceded that the discussion was in some way relevant to her science class, Petitioner still must prove that her comments had a demonstrated educational purpose. The only explanation Petitioner offered as to her purpose in

MARK ROBIN ETT Page 4 of 5 1985 TX Educ. Agency LEXIS 61, *11

participating in this two-day discussion was her belief that children's questions should be answered at the time they are asked, not at some later date. (See Tr. Vol. 1: 40). It is concluded, however, that the references to homosexual intercourse, to masturbation, and to where to find discarded condoms had no educational purpose authorized to be taught in her school to seventh graders. Finally, Petitioner was specifically instructed not to teach sex education until the unit had been revamped and approved. (See Finding of Fact No. 5). In Carr, 598 E2c1535, 541, the court noted that "cases which held for the teachers and placed emphasis upon teachers' [*121 rights to exercise discretion in the classroom, seemed to be situations where school authorities acted in the absence of general policy, after the fact, and had little to charge against the teacher other than the assignment with which they were unhappy." (Emphasis added). The Commissioner joined the court in disapproving the use of "hindsight" by Boards of Trustees in a recent decision. See Oscar Villa v. Marathon ISD, No. 104-R1 a-583, pp. 10, 11 (Comm. Educ., April 1984). However, Petitioner in this case was fully aware that her superiors wanted the boys and girls to be instructed about sex separately and at a later date. As in Villa (Id. at 2), the principal merely wanted to place reasonable limits on the dissemination of the appropriate information. In conclusion, the lack of relevance of Petitioner's comments, the absence of a demonstrated educational purpose, and the fact that Petitioner was on notice that she was not to instruct her students about sex at that time, all support a holding that her classroom discussion was not protected by the First and Fourteenth Amendments. This holding, however, does not assure Respondent that its decision will be affirmed. Petitioner's activity [*131 must still constitute "cause" for her termination. Tel. Lift(' Curie Ann 21.210 (Vernon Supp. 1983). First, it should be noted that Respondent did not terminate Petitioner for failing to follow a directive not to teach sex education. Rather, the district contends that the comments themselves constitute cause for termination. In deciding whether the statements made by Petitioner constitute cause, the effect of the statements on the students involved must be considered. If the comments were harmful or potentially harmful to the children, the district's decision must be upheld. A district cannot be required to leave its students exposed to a teacher who has indicated that she is likely to engage in conduct harmful to her students. Dooley v. Fort Worth ISD, No. 106-R2-284, p. 12 (Comm. Educ., January 1985). Here, the conduct of the teacher arguably had the potential to harm her students not physically, but emotionally in regard to their development of a healthy attitude towards their own sexuality and in their future relationships with others. Although conduct by a teacher which endangers a child's physical safety is much easier to identify and [*14] its consequences more tangible, protecting the emotional well-being of children is no less important simply because it is more difficult to determine what harm is done and to measure its severity. In determining whether conduct by a teacher is potentially harmful to the emotional well-being of a child, several factors must be considered. The significance of these factors is unique to the discussion of Petitioner's behavior and may be different in other cases due to the variety of community standards found in the 1100 plus school districts in Texas. Accordingly, the Commissioner must review the districts' decisions on a case by case basis. Perhaps the most important factor to consider here is the age of the students involved, both in years and in life experiences. Petitioner's class was composed of 17-18 boys and girls who ranged in age from 11-12 years, (See Tr. Vol. 1: 119-20; Vol. 2: 15, 49, 76, 101, 124, 164, 197). These students were at an age at which many children experience the changes which occur in their bodies and emotions during puberty, and as a result, are highly sensitive and impressionable. In fact, many of the students who testified at the hearing appeared to be confused [*15] about the terms used during questioning and seemed offended or embarrassed by the topics which were the subject of Petitioner's classroom discussion. (See Tr. Vol. 2: 21, 55, 73, 82, 92, 108, 110-11, 113, 116, 158, 170, 206, 108, 237). At times, some of the children cried during the proceeding. The children's age cannot be viewed alone, however. These children lived in a small rural community, more limited in their exposure to the types of experiences a child in an inner-city school in a large city might have had. Petitioner's students were likely less prepared by their life experiences to deal with her statements about the devices and techniques used by individuals engaged in sexual acts and to interpret her remarks which were made in an insensitive and flippant manner. Children of the same age in another community might not have been affected by a teacher's statements similar to those made by Petitioner; her comments might have been, in fact, common knowledge to another group. The determination concerning what the particular students in this case knew and how they were affected is best made by those closest to the situation, most familiar with the standards and expectations of the [*161 community in which the children affected reside - - i.e., the local board of trustees. This is not to say that teachers are at the mercy of local school boards and without guidelines for what statements may be made in the classroom. The message that should be clear is that the teacher must exercise good professional judgment in assessing the standards of the community in which he or she

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teaches when embarking on discussions of extremely sensitive subjects such as human sexuality and that guidelines, such as those given by Petitioner's principal, should not be disregarded. Also of great importance in determining the potential for harm in Petitioner's statements is the nature and extent of her comments. Clearly, her comments were inappropriate. Petitioner's statements on a highly sensitive and controversial topic went beyond answering questions in a straightforward and textbook-like manner, or answering an occasional question inappropriately. Moreover, the potential for harm increased with the continuation of the discussion. Petitioner spent two class periods, on successive days, discussing the matter, suggesting, among other things, that her students participate in self-gratifying [*171 sexual activity, and that they search for discarded condoms. She also gave an explicit description of homosexual intercourse. (See Finding of Fact No. 6(2)(3)). The effects of the comments were magnified by her continued participation in the discussions. Conclusion The decision of the Rocksprings Independent School District's Board of Trustees will be affirmed, but not without reservations. Petitioner did exercise poor judgment in this matter. However, one instance of exercising poor judgment will not necessarily support an action of termination of employment. See e.g., Shivers v. Liberty ISD, No. 163-R3-682, p. 14 (Comm. Educ., Jan. 1985). In most instances, the best way to handle such matters is to advise the teacher that he or she has exercised poor judgment and that a recurrence of the objectionable conduct might result in the teacher's termination. In the present case, there is no reason to believe that a stern warning to that effect would not have effectively prevented a recurrence of the conduct. In addition, this case is troublesome to the extent, if any, that Petitioner's termination was effected in order to placate certain irate parents. There is no evidence that any attempt [*18] was made by the school board or its administration to resolve this matter in a manner other than imposing the severe sanction of termination on Petitioner - - e.g., by holding a conference with Petitioner and those parents for the purpose of arriving at a clear understanding of what conduct would be expected of Petitioner in the future. Nevertheless, despite these reservations, when a teacher engages in activity which is potentially harmful to her students' physical or emotional well being, a school district must be allowed to terminate that teacher's employment rather than risk the possibility that the teacher might engage in further similar conduct. This is not to say that a teacher may be terminated for participating in any harmful activity no matter how minor; the harm must be significant. But in an area as sensitive as sex education, it would be presumptuous for the Hearing Officer or the Commissioner to conclude that their judgment in determining the seriousness of the harm to the students in a particular district is better than the local school board's. The Commissioner should not, therefore, substitute his judgment for that of the local board of trustees, elected by the citizens [*19] of its community, if their determination of the significance of the harm is reasonable. In the present case, Petitioner demonstrated that the Board's decision was questionable. She did not demonstrate, however, that it was unreasonable. The decision of the Board should, therefore, be affirmed. Conclusions of Law After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as State Commissioner of Education, I make the following Conclusions of Law: 1. Petitioner's comments on September 28 and 29, 1984 were not protected by the concept of academic freedom. 2. Petitioner's comments on September 28 and 29, 1984, constituted good cause for dismissal. 3. Petitioner's appeal should be DENIED. After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact and Conclusions of Law, in my capacity as State Commissioner of Education, it is accordingly ORDERED that Petitioner's appeal be, and is hereby, DENIED. SIGNED AND ENTERED this 10th day of July, 1985.

MARK ROBINETT