State v. Erasmo Montalvo

Opinion

ACCEPTED

03-13-00370-CV

6291805

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/30/2015 12:41:14 PM

JEFFREY D. KYLE

CLERK

CASE NO. 03-13-00370-CV

FILED IN

3rd COURT OF APPEALS

IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN 7/30/2015 12:41:14 PM

JEFFREY D. KYLE

Clerk

STATE BOARD FOR EDUCATOR CERTIFICATION, Appellant,

v.

ERASMO MONTALVO,

Appellee.

On Appeal from the 200th Judicial District Court of Travis County, Texas;

Cause No. D-1-GN-12-002991; Before the Honorable Tim Sulak

APPELLANT’S REPLY BRIEF

KEN PAXTON ELLEN M. SAMETH Attorney General of Texas Assistant Attorney General State Bar No. 17555550

CHARLES E. ROY OFFICE OF THE TEXAS ATTORNEY GENERAL First Assistant Attorney General Administrative Law Division P.O. Box 12548

JAMES E. DAVIS Austin, Texas 78711-2548 Deputy Attorney General for Telephone: (512) 936-1838 Civil Litigation Facsimile: (512) 457-4608 ellen.sameth@texasattorneygeneral.gov DAVID A. TALBOT, JR. Attorneys for Appellant Chief, Administrative Law Division

Oral Argument Requested July 30, 2015

TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii INDEX OF AUTHORITIES.................................................................................... iii I. STATEMENT OF FACTS ...................................................................................1 II. ARGUMENT AND AUTHORITIES ..................................................................3 1. Reply to Appellee’s section regarding the Board’s lack of authority to revoke an educator certificate “in the absence of actual wrongdoing.”

(Appellee’s Br. at 11) ............................................................................3 2. Reply to Appellee’s section that the Board’s reliance on Marrs v.

Matthews is misplaced. (Appellee’s Br. at 11) ....................................4 3. Reply to Appellee’s argument that the Board took Findings of Fact “out of context” in rendering its Final Decision and Order. (Appellee’s Br.

at 15) ......................................................................................................7 4. Reply to section regarding statements made by Merle Dover, TEA Deputy Associate Counsel. (Appellee’s Br. at 21–22) ........................8 5. Reply to Montalvo’s section regarding adoption of the Educators’ Code of Ethics and the lack of statutory cite for “unworthy to instruct.”

(Appellee’s Br. at 24–25) ......................................................................9 6. Reply to Montalvo’s statement that the Findings of Fact do not support the Board’s changes (Montalvo’s Issue II). ........................................10 a. Why Whalen does not support Montalvo.............................12 7. Reply to Montalvo’s section describing the “unworthy to instruct”

standard as arbitrary and capricious (Montalvo’s Issue III). ..............14 8. Reply to Montalvo’s assertion that the trial court properly issued a temporary injunction against the Board. (Appellee’s Issue IV). ........15 CONCLUSION ........................................................................................................16 PRAYER ..................................................................................................................16 CERTIFICATE OF COMPLIANCE .......................................................................18 CERTIFICATE OF SERVICE ................................................................................18

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INDEX OF AUTHORITIES

Cases Estancias Dall. Corp. v. Schultz, 500 S.W.2d 217 (Tex. Civ. App.—Beaumont 1973, writ ref’d n.r.e.) ................16

Grayned v. City of Rockford, 408 U.S. 104 (1972) ...........................................................................................5, 6

Heritage on the San Gabriel Homeowners Ass’n v. Tex. Comm’n on Envtl. Quality, 393 S.W.3d 417 (Tex. App.—Austin 2012, pet. denied) .....................................10

Imperial Am. Res. Fund, Inc. v. R.R. Comm’n, 557 S.W.2d 280 (Tex. 1977) ................................................................................14

In re State Bd. for Educator Certification, 452 S.W.3d 802 (Tex. 2014) ................................................................................15

Lewis v. Jacksonville Bldg. & Loan Ass’n, 540 S.W.2d 307 (Tex. 1976) ................................................................................10

Marrs v. Matthews, 270 S.W. 586 ................................................................................................. 4, 5, 9

Nueces Cnty. Drainage & Conservation Dist. No. 2 v. Bevly, 519 S.W.2d 938 (Tex. Civ. App.—Corpus Christi 1975, writ ref’d n.r.e.) .........16

R.R. Comm’n v. Pend Oreille Oil & Gas Co., 817 S.W.2d 36 (Tex. 1991) ..................................................................................14

Texarkana & Fort Smith Ry. Co. v. Hous. Gas & Fuel Co., 121 Tex. 594, 51 S.W.2d 284 (1932) ...................................................................10

TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) ................................................................................10

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Statutes

Tex. Educ. Code § 21.031 ..................................................................................................................6 § 21.041(7)..............................................................................................................6 § 21.041(8)..............................................................................................................6

Rules

19 Tex. Admin. Code § 249.5 ....................................................................................................................6

Tex. R. App. P. 38.1(g) ..............................................................................................2

Other Authorities 31 Tex. Jur. Nuisances § 35 .....................................................................................16

Decision of the Commissioner Whalen v. Rocksprings Indep. Sch. Dist., No. 065-R1B-284, 1985 TX Educ. Agency LEXIS 61........................... 12, 13, 14

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CASE NO. 03-13-00370-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN

STATE BOARD FOR EDUCATOR CERTIFICATION, Appellant,

v.

ERASMO MONTALVO,

Appellee.

On Appeal from the 200th Judicial District Court of Travis County, Texas;

Cause No. D-1-GN-12-002991; Before the Honorable Tim Sulak

APPELLANT’S REPLY BRIEF

TO THE HONORABLE THIRD COURT OF APPEALS:

COMES NOW Appellant, State Board for Educator Certification (Board), represented by and through the Office of the Texas Attorney General, and the undersigned Assistant Attorney General, and files its Appellant’s Reply Brief. In support hereof, the Board respectfully shows the Court the following:

I. STATEMENT OF FACTS While Montalvo’s recitation of actual facts is accurate, the Board takes exception to the way in which those facts are presented as being misleading.

Montalvo imputes conclusions where none have been expressed by either the Board or the ALJ in their Findings of Fact.

For example, on page 4 of Appellee’s Brief, he expounds on the fact that VS appears happy and excited in a video with Montalvo. The ALJ gave no credence to Montalvo’s argument about this seemingly normal behavior by VS, by referring to the testimony of the Board’s expert witness, a Licensed Professional Counselor with experience in the field of abuse. 1 AR 16, 33–35. In her analysis of the evidence, the ALJ point-blank stated that, based on the testimony of the Board’s expert witness, she gave no weight to VS’s apparently normal behavior around Montalvo, including her behavior in the video with Montalvo, or her inconsistent statements about what happened. 1 AR 53.

Another example is on page 5 of Appellee’s Brief, in ¶ 7, and again on page 7, in ¶ 10, where Montalvo concludes that the criminal jury acquitted him because VS was not credible. However, there is no evidence in the administrative record that the criminal jury found VS lacking in credibility.

In conclusion, had Montalvo recited the facts as found by the ALJ, instead of editorializing them and changing their tenor and meaning, the Board would have no objection. See Tex. R. App. P. 38.1(g).

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II. ARGUMENT AND AUTHORITIES

1. Reply to Appellee’s section regarding the Board’s lack of authority to revoke an educator certificate “in the absence of actual wrongdoing.” (Appellee’s Br. at 11)

Montalvo errs in his argument that the Board lacked authority to sanction him “in the absence of actual wrongdoing.” Appellee’s Br. at 11. “Actual wrongdoing” is not necessarily the equivalent of a Code of Ethics violation or one specific, quantifiable act. What caused the Board to take note of what Montalvo had done was not just one instance of poor judgment and the subsequent conduct resulting from that judgment, but instead multiple instances of poor judgment and the resultant conduct.

While, for example, there is no bright line rule regarding phone calls between educators and students, in this case it is not unreasonable for the Board to find that 480 calls—even taking into account that a number of them may have been “dropped” calls—is inappropriate regardless of content. Nor is it unreasonable for the Board to find that allowing students into your home to use the Jacuzzi in your master bathroom—especially in allowing one female student, alone, into your master bathroom Jacuzzi—is crossing the boundary of an appropriate educator-student relationship.

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In concluding that Montalvo is unworthy to instruct, the Board looked at the totality of Montalvo’s judgment calls and actions, and concluded that he had crossed the line and lacks the ability to make the appropriate judgments that educators must make in order to be role models for students.

It should be noted that the Board made no attempt to sanction Montalvo for one call, or two calls, or any number of calls, or after Montalvo had students in his home one time only. Nor did the Board claim that just one instance of poor judgment put Montalvo “over the line” into inappropriate conduct as an educator. The Board instead cited all of these instances as evidence of Montalvo’s deficient judgment and complained not only of Code of Ethics violations when it originally filed its administrative complaint, but also pled that he is unworthy to instruct.

2. Reply to Appellee’s section that the Board’s reliance on Marrs v.

Matthews is misplaced. (Appellee’s Br. at 11)

Montalvo’s argument that the Board’s reliance on the Marrs 1 case is misplaced is short-sighted. The Marrs case, relying on the “unworthy to instruct” language, involves an educator involved in a scheme to fraudulently issue educator certificates. While it is true that the Marrs Court did not find the phrase “unworthy to instruct” to be vague “as to the conduct in that case” (Appellee’s Br. at 12), the opinion does not imply that the phrase is limited to that particular set of

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

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circumstances or others like it. On the contrary, the opinion does justice to the phrase “unworthy to instruct” by giving an expansive explanation of not only what it means, but why the phrase cannot be specifically defined. Id. at 588.

The Board is certainly qualified to determine when the line defining a proper educator-student relationship is crossed, and sanction accordingly. In fact, educators themselves are capable of determining when they have crossed that boundary. It is clearly worrisome to the Board that Montalvo did not recognize that his conduct (having students use the Jacuzzi in his master bathroom; engaging in tens, if not hundreds, of phone calls with one particular student) shows major lapses in his judgment as an educator.

The fact that the phrase “unworthy to instruct” has no black and white definition does not indicate lack of accountability and an ability to arbitrarily sanction. See Appellee’s Br. at 13. The need for more concrete notice of a violation is much stronger in criminal cases than in non-criminal cases such as this one. Montalvo cites to the Grayned 2 case for support. However, while Grayned does expressly state that it is a “basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined,” Grayned deals with the potential for a penal sanction. Id. at 108. Here, however, there is no penal sanction involved. While the loss of a professional certification is serious, it is not the sort of

2 Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).

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seriousness that involves the potential to be sent to jail or prison, or have a conviction on one’s criminal record—as in Grayned. And the Grayned opinion goes on to state that “[c]ondemned to the use of words, we can never expect mathematical certainty from our language.” Id. at 110. Further, the Court explained that,

[d]esigned, according to its preamble, ‘for the protection of Schools,’ the ordinance forbids deliberately noisy or diversionary activity that disrupts or is about to disrupt normal school activities. It forbids this willful activity at fixed times—when school is in session—and at a sufficiently fixed place—‘adjacent’ to the school. Were we left with just the words of the ordinance, we might be troubled by the imprecision of the phrase ‘tends to disturb.’

Id. at 110–11. This is an important point and can be directly related to the “unworthy to instruct” language in the Board’s rules.

Various statutes, rules, and the Board’s Disciplinary Policy and Mission Statement (adopted February 6, 2009) reference the fact that the conduct of educators is to be regulated by the Board. See Tex. Educ. Code §§ 21.031, .041(7), .041(8). The Board also has a duty to protect not only schoolchildren but educators. 19 Tex. Admin. Code § 249.5; SBEC Disciplinary Policy and Mission Statement. See Apps. B and C, respectively. When taken together, the rules, statutes and Disciplinary Policy put the “unworthy to instruct” language in context. It is worth repeating that Texas case law is replete with numerous phrases that are similar to

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“unworthy to instruct” in that they defy exact definition yet pass constitutional muster. See Appellant’s Br. at 20–21.

3. Reply to Appellee’s argument that the Board took Findings of Fact “out of context” in rendering its Final Decision and Order.

(Appellee’s Br. at 15)

No Findings were taken out of context by the Board because all Findings relied on by the Board involved Montalvo’s conduct. 1 AR 61-62, or see App. D (ALJ’s Findings of Fact and Conclusions of Law). In fact, it is Montalvo who took the Findings out of context. The Board did not revoke Montalvo’s certificate because, for example, “[d]istrict protocol required that injured students be sent to the trainer,” or because, “[f]ollowing her injury, VS underwent stretching, rub downs, ice baths, and whirlpool use under Mr. Montalvo’s direction,” or because of any of the other Findings of Fact taken individually. See 1 AR 62, 63 (FOF 11, 18), or see App. D. The Board’s Order expressly states that it is based on seven Findings of Fact that, when taken together, indicate that Montalvo is unworthy to instruct. See 1 AR 68– 69, or see App. A (Board’s Final Decision and Order).

Common sense dictates that a male educator inviting a female student (or any student) to his home to use the master bath Jacuzzi has engaged in conduct no educator should be engaging in, regardless of whether or not any misconduct occurred. The same goes for excessive phone calls between an educator and a student, as here. The fact that the only people who know what the content of those

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calls were and that they both testified that the calls were not in the furtherance of a romantic relationship does not mean that the sheer number of calls could not be taken into account by the Board. But the Board did not rely on just those Findings. Instead, it relied on the totality of Findings regarding Montalvo’s decisions and conduct in reaching its conclusion.

The Board’s Final Decision and Order does not stand for the proposition that if an educator gives students rubdowns, or assists them in stretching, or engages in any number of other individual acts as found to have been committed by Montalvo that they are in danger of losing their certificate. In Montalvo’s case, it was all of his decisions that, when taken together, are indicative of an educator who lacks judgment, cannot be a role model for students, and is unworthy to instruct.

4. Reply to section regarding statements made by Merle Dover, TEA Deputy Associate Counsel. (Appellee’s Br. at 21–22)

Montalvo’s quote, attributed to Merle Dover (Appellee’s Br. at 21–22)

speaking at a school law seminar in 2011, is taken out of context. As Ms. Dover explained while testifying at the hearing for Montalvo’s request for a temporary restraining order, her remarks regarding phone calls were not part of any prepared speech but were in response to a hypothetical question from an audience member to which she was responding. See 2 RR 53:18–55:6. And, as with all other findings of fact that Montalvo brings up in his Brief, the phone calls must be seen as part of the

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broader picture as opposed to Montalvo’s narrowly painted picture that phone calls alone do not make an educator unworthy to instruct.

5. Reply to Montalvo’s section regarding adoption of the Educators’

Code of Ethics and the lack of statutory cite for “unworthy to instruct.” (Appellee’s Br. at 24–25)

It is merely Montalvo’s opinion that the term “unworthy to instruct” should be limited to “egregious cases such as fraudulently issuing teaching certificates,” as in the Marrs case. Appellee’s Br. at 25. The fact that the Board now has in place a comprehensive Code of Ethics which did not exist at the time that the “unworthy to instruct” language appeared in statute in no way negates the need for, or legitimacy of, language to sanction educators when the Board finds that an educator has crossed the boundary of a proper educator-student relationship despite the lack of a Code of Ethics violation. Montalvo’s judgments and actions are indicative of that necessity. For example, the fact that no violation was found in terms of solicitation of a romantic relationship between Montalvo and VS does not indicate that an excessive number of calls between an educator and a student is “okay.” Further, the fact that there was no finding of anything improper going on during students’ visits to Montalvo’s master bath Jacuzzi, and hence no Code of Ethics violation, does not mean that such behavior is also “okay.”

Montalvo is correct that the term “unworthy to instruct” no longer appears in the Texas Education Code, having been repealed when the Board was formed by the

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legislature in 1995. The term does, however, exist in the Board’s rules. The Board’s rules have the force and effect of law. Lewis v. Jacksonville Bldg. & Loan Ass’n, 540 S.W.2d 307, 310 (Tex. 1976) (“Valid rules and regulations promulgated by an administrative agency acting within its statutory authority have the force and effect of legislation.”) (citing Texarkana & Fort Smith Ry. Co. v. Hous. Gas & Fuel Co., 121 Tex. 594, 51 S.W.2d 284 (1932)).

In conclusion, it is absolutely within the Board’s discretion to determine that Montalvo’s conduct crossed the line into “inappropriate” regardless of whether or not a specific ethical standard had been violated, and regardless of whether or not the term “unworthy to instruct” appears in statute. In other words, the Board has the authority to make policy determinations and the courts give deference to those determinations, as long as they are reasonable. See Heritage on the San Gabriel Homeowners Ass’n v. Tex. Comm’n on Envtl. Quality, 393 S.W.3d 417, 424 (Tex. App.—Austin 2012, pet. denied) (citing TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011)).

6. Reply to Montalvo’s statement that the Findings of Fact do not support the Board’s changes (Montalvo’s Issue II).

One of Montalvo’s complaints is that the Board revoked his certificate for “poor judgment,” when “poor judgment” is not a standard for maintaining one’s certificate. Appellee’s Br. at 33. Montalvo’s diatribe against the use of “poor judgment” as a basis for revocation is misplaced. Significantly, the Board’s Final

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Decision and Order does not reference Montalvo’s “poor judgment” other than by inference. Instead, the Order itself clearly explains the rationale on which it is based, which is:

• Protecting the safety and welfare of Texas schoolchildren and personnel is a primary purpose of the SBEC.

• The moral fitness of an educator must be determined from an examination of all relevant conduct and is not limited to conduct that constitutes a criminal violation . . . .

• Allowing a female student to use the [J]acuzzi in the master bathroom of his home while no one else is present, calling a student over 480 times in the late evening over a four month period, and a male coach giving a female athlete rubdowns and ice baths, failing to follow district protocol to send an injured athlete to the trainer is conduct that the SBEC considers to cross the bounds of the appropriate student-teacher relationship and is sanctionable conduct.

• Respondent’s actions crossed the bounds of an appropriate educator-student relationship and show that he is not presently worthy to hold a Texas educator certificate.

I AR 68–69 (Final Decision and Order), or see App. A. It is indeed Montalvo’s poor judgment which led him to engage in inappropriate conduct with his students in general, and VS in particular. And, according to the Board’s Final Order, it is Montalvo’s conduct that is responsible for his certificate revocation. I AR 69, or see App. A.

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Nor, as Montalvo also argues, has the Board revoked his certificate because of 480 phone calls, or because of his allowing a female student to use the Jacuzzi in his master bath at home, or because of any other individual Finding of Fact as found by the ALJ and adopted by the Board. Rather, as the Board has consistently explained, and as its Final Decision and Order details, it is because the totality of Montalvo’s judgments and subsequent actions have crossed the boundary into inappropriate conduct. For that reason, passages cited by Montalvo from the Whalen 3 case are inapplicable. Appellee’s Br. at 34, 35.

a. Why Whalen does not support Montalvo.

Whalen involved a case where a teacher violated express instructions in presenting material in a sex education class over the course of several class periods spanning two days. The Commissioner, although hesitant to affirm the Board of Trustees’ decision to terminate Whalen’s contract after the first year of a two year contract, did so. His hesitancy was because, as the passage cited by Montalvo in his Brief (Appellee’s Br. at 34) says, “one instance of exercising poor judgment will not necessarily support an action of termination of employment.” Whalen, 1985 TX Educ. Agency LEXIS 61, at *17.

3 Whalen v. Rocksprings Indep. Sch. Dist., No. 065-R1B-284, 1985 TX Educ. Agency LEXIS 61, at *17.

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But Montalvo failed to include a later passage from the Whalen Decision which is applicable to this case:

Nevertheless, despite these reservations, when a teacher engages in activity which is potentially harmful to her students’ physical or emotional well being, a school district must be allowed to terminate that teacher’s employment rather than risk the possibility that the teacher might engage in further similar conduct.

Id. at *18 (emphasis added). And, following in that same paragraph:

In the present case, Petitioner demonstrated that the Board’s decision was questionable. She did not demonstrate, however, that it was unreasonable. The decision of the Board should, therefore, be affirmed.

Id. at 19 (emphasis added). And, while the Whalen Decision also states that the harm must be significant (Id. at *18), in the present case we have a male coach inviting a female student, alone, to his home to use the Jacuzzi in his master bathroom; engaging in hundreds of phone calls, including 80 calls after 10:00 p.m., no matter how brief they may be; treating her injury himself with ice baths and rubdowns; and generally engaging in questionable behavior. All of this is evidenced by the Findings of Fact in the Board’s Final Decision and Order, adopted verbatim from the ALJ’s Proposal for Decision. I AR 67–69, or see App. A. Not only is the potential for harm present, as noted in the Whalen decision, but, in considering all that has transpired for both VS and Montalvo as a result of all of these actions, significant harm can certainly be considered to have occurred.

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While Whalen involves the appeal of a Decision of the Commissioner of Education rather than the appeal of a state Board decision, the rationale of the Commissioner’s Decision certainly applies. In a substantial evidence appeal, the standard is not whether the court agrees with the Board’s decision, or even if the court believes it is a wrong decision. Rather, the court must affirm the Board’s Final Decision and Order if it is reasonable. Imperial Am. Res. Fund, Inc. v. R.R. Comm’n, 557 S.W.2d 280, 286 (Tex. 1977); R.R. Comm’n v. Pend Oreille Oil & Gas Co., 817 S.W.2d 36, 41 (Tex. 1991) (“At its core, the substantial evidence rule is a reasonableness test or a rational basis test.”). Because the Board’s position is reasonable, the trial court should have affirmed its Final Decision and Order.

7. Reply to Montalvo’s section describing the “unworthy to instruct”

standard as arbitrary and capricious (Montalvo’s Issue III).

The Board has briefed this issue in detail in its previously-filed Appellant’s Brief. However, it is worth emphasizing that Montalvo’s opinion as to when the standard applies (“when involving extreme and egregious conduct that is not now articulated in the Code of Ethics”4) is just that, his opinion. While the Code of Ethics is a comprehensive listing of ethical standards to be adhered to by educators, it cannot possibly be all-encompassing since it refers to human behavior, which, potentially, entails an infinite number of possibilities. Again, it is not unreasonable

4 Appellee’s Br. at 37.

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for the Board to find that allowing a female student into your master bath Jacuzzi is not appropriate behavior for a teacher. And that is just one of Montalvo’s behaviors, based on his judgment or lack thereof, to which the Board took exception in its Final Decision and Order. All Findings were adopted verbatim from the Proposal for Decision, with no objection by Montalvo.

8. Reply to Montalvo’s assertion that the trial court properly issued a temporary injunction against the Board. (Appellee’s Issue IV).

The Court did not, in fact, balance the equities when issuing the temporary injunction against the Board, as Justice Guzman opined in her concurring opinion. In re State Bd. for Educator Certification, 452 S.W.3d 802, 809 (Tex. 2014) (Guzman, J., concurring). The Findings of Fact and Conclusions of Law filed by the trial court following the hearing regarding injunctive relief, while mentioning that the “competing equities favor granting the injunction,” make no mention of facts other than the ones affecting Montalvo. RR 5 8–10, or see App. E. In other words, the Findings of Fact are conclusory only. The harm or potential harm to schoolchildren faced with an educator displaying Montalvo’s lack of judgment, is not mentioned, let alone discussed. Montalvo’s own briefing only mentions the testimony concerning Montalvo’s experience as an educator, the fact that he was placed on leave with pay after he was indicted, that he was reinstated after he was

5 Reporter’s Record

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acquitted, nothing more. Appellee’s Br. at 40. “Balancing” requires more than just looking at one side of the equation, and yet, that is all that was done in this case. Estancias Dall. Corp. v. Schultz, 500 S.W.2d 217, 221 (Tex. Civ. App.—Beaumont 1973, writ ref’d n.r.e.) (quoting 31 Tex. Jur. Nuisances § 35) (“According to the doctrine of ‘comparative injury’ or ‘balancing of equities’ the court will consider the injury which may result to the defendant and the public by granting the injunction as well as the injury to be sustained by the complainant if the writ be denied.”) (emphasis added); Nueces Cnty. Drainage & Conservation Dist. No. 2 v. Bevly, 519 S.W.2d 938, 948 (Tex. Civ. App.—Corpus Christi 1975, writ ref’d n.r.e.).

CONCLUSION

The Board’s actions were reasonable: in adopting all Findings of Fact verbatim, the Board concluded that Montalvo is unworthy to instruct. Under the substantial evidence standard, the Court must affirm the Board’s Final Decision and Order as there is substantial evidence in the record to support it.

PRAYER

For the reasons stated above and in its initial Appellant’s Brief, Appellant State Board for Educator Certification respectfully prays that this Court reverse the trial court’s Final Judgment and affirm the Board’s Final Decision and Order permanently revoking Montalvo’s educator certificate.

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Respectfully submitted,

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

JAMES E. DAVIS Deputy Attorney General for Civil Litigation

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

/s/ Ellen M. Sameth ELLEN M. SAMETH Assistant Attorney General Texas State Bar No. 17555550 OFFICE OF THE TEXAS ATTORNEY GENERAL Administrative Law Division P.O. Box 12548 Austin, Texas 78711-2548 Telephone: (512) 936-1838 Facsimile: (512) 457-4608 ellen.sameth@texasattorneygeneral.gov Attorneys for Appellant State Board for Educator Certification

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

App. P. 9 and the word count of this document is 3,700. The word processing software used to prepare this filing, and calculate the word count of the document, is Microsoft Word 2010.

Date: July 30, 2015 /s/ Ellen M. Sameth

Ellen M. Sameth

Assistant Attorney General

CERTIFICATE OF SERVICE

I hereby certify that on July 30, 2015, a true and correct copy of the foregoing document was served via the Court’s ECF system to all counsel of record:

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

/s/ Ellen M. Sameth

Ellen M. Sameth

Assistant Attorney General

CASE NO. 03-13-00370-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN

STATE BOARD FOR EDUCATOR CERTIFICATION, Appellant,

v.

ERASMO MONTALVO,

Appellee.

On Appeal from the 200th Judicial District Court of Travis County, Texas;

Cause No. D-1-GN-12-002991; Before the Honorable Tim Sulak

APPELLANT’S REPLY BRIEF

APPENDIX

A. FINAL DECISION AND ORDER

B. 19 TEX. ADMIN. CODE § 249.5 C. SBEC DISCIPLINARY POLICY AND MISSION STATEMENT D. ALJ'S FINDINGS OF FACT AND CONCLUSIONS OF LAW E. TRIAL COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW

CASE NO. 03-13-00370-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN

STATE BOARD FOR EDUCATOR CERTIFICATION, Appellant,

V.

ERASMO MONTALVO,

Appellee.

On Appeal from the 200th Judicial District Court of Travis County, Texas;

Cause No. D-1-GN-12-00299I; Before the Honorable Tim Sulak

APPELLANT'S REPLY BRIEF

APPEI{DIX A

67

soAH DOCKET NO. 701-l l-8468.EC TEXAS EDUCATION ÀGENCY, $ BEFORE THE STATE OF'FICE EDUCTVIOR CERTIFICATION ANI) $ STANDARDS DMSION, $ Petitioner $ $

V $ OF $

ERASMO MONTALVO, JR., $ Respondent $ ADMINISTRATIVE TIEARINGS

FINAL DECISTON AND ORDER

Came on for consideration on the l0tlt<!ay of Atrgust2Ol2the above-styled matter,

After proper notice was given, lhe above-styled case was heard by an Administratíve Law Judge who made and filed a Proposal for Decision containing Findings of Fact and Conclusions of Law, This Proposal for Decision was properly served on all parties, who were givsn an opportunity to tìle exceptions and replies as part of the administrative record, 't'he State [loard for Educator Certification, ("Board" or'SBEC"), after ¡eview and consideration of the Proposal f'or l)ecision, as well as the exceptions and replies tìlcd, ifl any, adopts the I¡indingsofFactNos, lthrough33andConclusionsofLawNos. lthrough6intheProposaltbr Decision, as if fully set out herein, The tloard modifies ancl adopts Conclusions of Law Nos. 7

nnd 8, as set out below, and aclds Conclusion of Law 9. All proposed Findings ol Fact and Conclusions of L¿rw not specifically adopted herein are hereby denied, Responclent, a rnale coach, engagetJ in conduct which exceeds the bottltds of the proper edttcator-

stu<je¡t relationship during the spring semester o12008 by frriling to tbllow dislrict protocol and send V,S. to the tra¡ner tbr her ongoing injury, (Findings of [ract ll and l4); by rtrbbing down ancJ/gr nrassaging V,S,, (Finclings of fìact l8 and 20); by treating V,S.'s injtrry himself rvith

stretching, ice ba(hs, ancl rvhirlpools. (F'inding of Fact t8); by ultor.ving V.S. to ttse the Jttcttzz.í in the rnaster bedrooln ot'his homc ',vhilc no one else rvas pre.sent, (Ijirrdings of lact 22 and 23); antl

by engaging in approximately 480 phone calls rvith V,S, tltrríng a.l ruonth pcriocl, rvith over 80 trl those calls being placcd atler l0:00 p,m. (frinding ol Fact 26)'

MONTALVO V. SBEC

68

Conclusion ol Law 7:

Based on Finclings o[ Fact I I, 14, I 8, 20, 22,23 and 26, Respondent exceeded the botrnds of the proper educator-student relatíonship and is a person unworthy to ínstruct or supervise the youtlr of this state .

Conclusion ot'Law 8:

SBEC is authorized to take dísciplinary action against Respondent's Texas Eclucator Certificatc, Conclusion of Law 9: Respondenl's educator certificate should be sanctioned.

1'hese additions and modifications are permissible pursuant to Texas Govemment Code I 2001,058(e) and are necessary because the Admin¡strative Law Jrrdge failed to appropriately interpret arrd apply SBEC policies and rules. See 34 'lexReg 5421-22, Murrs v. lulcttthews,2T0

S.W, 586 (1925), l9 Tex. Admin. Code S 249.15(b)(2).

prolecting the safety and welfarc of Texas schoolchildren and school personnel is a primary purpos6 of lhe SBEC. A certitìed educator holds a unique position of public trust, and therefore, the condt¡ct of an edtrcator must be held to the highest stanclard,

The nroral fitness olan educator must be deternlined from an examination of all relevant conduct and is not limited to conduct that constitutes a criminal violation or results in a criminal convíction. ['he rcsponsibility antl discretion to make this weighty detemination is vested in the SBEC,

iVlr. lvto¡talvo helct a trusted position of authority that provicled him a ttnic¡ue opportttnity to

explclit l,Lrlnerable tèrnale ôthletes. Educators ntust clearly untlerstand the hotrndaries ol'the eclucator-stndcnt relationship that they ¿1re trustcd not to cross. The SBEC considcrs any violatiotr

trl'that t1¡st to bc cclnduct that may result in pcrnìancnt revocalion of an etlttcrlor's certificate. i\lf orving a lèrnale studerrt to use thc. jacuz.z.i in thc master b:ttltroolll ol his hollre rvhilc no rlnc:

elsc is ¡lresr.¡t. ciìlling, it studct.tt or'cr.{81) liules in tlte l¿rtc cvenirrg tlvcr il t'ottr rnorrth pcri0d. itnd

MONTALVO V. SBEC

69

a nrale coach giving a t'emale athlete rubdowns and ice baths, täiling to fbllorv district protocol to send an injured athlete to the trainer is conduct that the SBEC consiclers to cross the bounds of the appropriate studenþteacher relationship and ís sanctionable conduct,

Respontlent's actions crossed the bounds of an appropriate cducator-student relationship and show that he is not presently worthy to hotd a'fexas edt¡cator certificate,

NOW, TFIEREFORE, IT IS ORDERED by the Board pursuant to the Texas Education Code Sections 21,031 and 2l.O4l(b)(7) and the Board's nrles promulgated in accordance with these

statutes rhat Respondent ERASMO MONTALVO, JR.'S Tcxas Educator Certifrcate Number XXX-XX-66-13 ishereby ?^.-l"fL* d On behalf of the State Board for Educator Certificationl

lo-

L. CAIN, Ed. DATE

Nole: Pnrsuctnt to Board Order No,990705DPl issued under I9 Tex. Ád¡nin. Code $ 249.7ßù, the presiding oflìcer of the State Boardfor Ecltrcator Cerlìficctlion may sign qn order on behulf of

lhe maiority of'metnhers muking the Jinal clecision on a cqse.

MONTALVO V, SBEC

CASE NO. 03-13-00370-cV

IN THE COURT OF APPEALS

FOR THE TIIIRD DISTRICT OF TEXAS AT AUSTIN

STATE BOARD FOR EDUCATOR CERTIFICATION, Appellønt,

Y.

ERASMO MONTALVO,

Appellee,

On Appeal from the 200th Judicial District Court of Travis County, Texas;

cause No. D-1-GN-12-002991; Before the Honorable Tim sulak

APPELLANT'S REPLY BRIEF

APPENDIX B

Page I

|-' LexisNexis' 1 of 4 DOCUMENTS

TEXAS ADMINISTRATIVE CODE ,k't{t ARCIilVE DATA 'È*,1,

¡I. ¡I.

'I. TI{S DOCUMENT REFLECTS ALL RULES IN EFFECT AS OF DECEMBER 3 1, ¡lr*:r'.

2008

TITLE 19. EDUCATION

PART 7. STATE BOARD FOR EDUCATOR CERTIFICATION CFIAPTER 249. DISCPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED CASES

SUBCI{APTER A, GENERAL PROVISIONS

le rAC ç 24e.s (2008)

ç 249.5. Purpose

The purpose of this chaPter is:

to protect the safety and welfare of Texas schoolchildren and school personnel;

(l)

(2) to ensure educators and applicants are morally fit and worthy to instruct or to supervise the youth of the state;

(3) to regulate and to enforce the standards ofconduct ofeducators and applicants;

(4) to provide for disciplinary proceedings in conformity with the Texas Government Code, Chãpter 2001, and the rules of practice and procedure of the State Office of Administrative Hearings;

(5) to enforce an educators'code ofethics;

(6) to fairly and efficiently resolve disciplinary proceedings at the least expense possible to the parties and the state;

(7) to promote the development of legal precedents through State Board for Educator Certification (SBEC) decisions to the end that disciplinary proceedings may be justly resolved ; and (8) to provide for regulation and general administration pursuant to the SBEC's enabling statutes.

SOURCE: The provisions of this ç 249.5 adopted to be effective March 31,1999,24 TexReg 2304; amended to be effective December 16, 2007,32 TexReg 9112

CASE NO. 03-13-00370-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN

STATE BOARD F'OR EDUCATOR CERTIFICATION, Appellant,

v

ERASMO MONTALVO,

Appellee.

On Appeal from the 200th Judicial District Court of Travis County, Texas;

Cause No. D-1-GN-12-00299I; Before the Honorable Tim Sulak

APPELLANT'S REPLY BRIEF

APPENDIX C

SBEC Disciplinary Policy and Mission Statement DISCPLINARY POLICY GUIDELINES

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

(l) protect the safety and welfare of Texas schoolchildren and school personnel;

(2) ensure educators and applicants are morally fit and worthy to instruct or to supervise the youth of the state; and (3) fairly and efficiently resolve educator disciplinary proceedings.

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

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

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

General Principles:

1. Because the SBEC's primary duty is to safeguard the interests of Texas students, educator certification must be considered a privilege and not a right.

2. SBEC disciplinary sanctions are based on educator conductthat is proved by a preponderance of the evidence, without regard to whether there has been a criminal conviction, deferred adjudication or other type of community supervision, an indictment, or even an arrest. Under the Educators' Code of Ethics, an educator may be sanctioned for conduct underlying a criminal conviction even if the crime is not subject to sanction under the Texas Occupations Code, Chapter 53. An educator may also be sanctioned for conduct underlying a criminal conviction even if the conduct is not specifically listed in 19 TAC S 249.16, as long as the conduct renders the educator unworthy to instruct. 3. Because the SBEC recognizes that an educator's good moral character, as defined in 19 TAC ç 249,3, constitutes the essence of the role model that the educator represents to students both inside and outside the classroom, criminal law, 19 TAC Chapter 247,fhe Educator's Code of Ethics, and 19 TAC Chapter 249,providing for educator disciplinary proceedings, are merely a minimum base line standard for educator conduct. Active community supervision, as well as conduct that indicates dishonesty, untruthfulness, habitual impairment through drugs or alcohol, abuse or neglect of students and minors, including the educator's own children, or reckless endangerment of the safety of others, may demonstrate that the person lacks good moral character, is a negative role model to students, and does not possess the moral fitness necessary to be a certified educator.

4. "L;nworthy to instruct or to supervise the youth of this state," which serves as a basis for sanctions under 19 TAC ç 249.15(b) (2), is a broad concept that is not limited to the specific criminal convictions that are described in Texas Education Code (TEC) S$ 21.058 and 21.060. The SBEC 19 TAC $ 249.3(45) definition of "the determination that a person is unfit to hold a certificate under the TEC, Chapter 21, Subchapter B, or to be allowed on a school campus under the auspices of an educator preparation program"

predates the adoption of TEC $$ 21.058 and 27.060, and is based upon the TEC, Chapter 21, Subchapter B grant of authority to the SBEC to "regulate and oversee all aspects of the certiflrcation, continuing education, and standards of conduct of public school educators." As a Texas Court of Civil Appeals ruled in the seminal case of Marrs v. Matthews,270 S.W. 586 (1925), "unworthy to instruct" "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." Therefore, the moral htness of a person to instruct the youth of this state must be determined from an examination of all relçvant cQnduct, is not limited to conducf thatoccurs while performing the duties of a professional educator, and is not limited to conduct that constitutes a criminal violation or results in a criminal conviction.

5. Educators have positions of authority, have extensive access to students when no other adults (or even other students, in some cases) are present, and have access to confidential information that could provide a unique opportunity to exploit student vulnerabilities. Therefore, educators must clearly understand the boundaries of the educator-student relationship that they are trusted not to cross. The SBEC considers any violation of that trust, such as soliciting or engaging in a romantic or sexual relationship with any student or minor, to be conduct IhaT may result in permanent revocation of an educator's certificate.

6. The SBEC recognizes and considers evidence of rehabilitation with regard to educator conduct that could result in sanction, denial of a certification application, or denial of an application for reinstatement of a certiftcate, but must also consider the nature and seriousness of prior cenduct, the potential danger the conduct poses to the health and welfare of students, the effect of the prior conduct upon any victims of the cenduct, whether sufflrcient time has passed and sufficient evidence is presented to demonstrate that the educator or applicant has been rehabilitated from the prior conduct, and the effect of the conduct upon the educator's good moral character and ability to be a proper role model for students.

Mission Statement (Buck to top)

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

CASE NO. 03-13-00370-CV

IN THE COURT OF APPEALS

F'OR THE THIRD DISTRICT OF TEXAS AT AUSTIN

STATE BOARD FOR EDUCATOR CERTIFICATION, Appellant,

v

ERASMO MONTALVO,

Appellee.

On Appeal from the 200th Judicial District Court of Travis County, Texas;

Cause No. D-1-GN-12-002991; Before the Honorable Tim Sulak

APPELLANT'S REPLY BRIEF

APPENIDIX D

soAH DOCKE'I' NO, 701..1 l-8468,8C PROPOSAL FOR DECÍSION PAGE 52

physìcnl or ment¿l health, constituled rnistreatn:etrt or negleot, or by thcmselves a¡rounted to solicit¿tion or engagsrllont in a sexuat or romantic lelntionship. Nor would such remil'ks, by 'instrtrçl or strpervise youth. Jt t¡ernselves, have indioats<I that Mr, Mont¡lvo is un'¡'olhy to wonkì hRve been wise for M¡, À,fontalvo to have refe¡rtd V,S. to a counselor irutead of trying 1o addrçss her necds himself, but that is a diffcrent tuatter, and ono llot pled in this case.

Mr. Morrtalvo's telophone calls rvith V,S, did not violate lhe cited Coc]e of Ethiss provisions and should not subject him to sa¡lclion.

5, Student Use of Mr, lVlonf¡¡lvo's Jacur¿l

Ir is undisputc<l tlrat Mr, Motrt¿lvo allowed students, including V,S,, to use his Jaottz:¿i'

\vhile there is insulficient evidence t0 suPport a determination that Mr' Montqlvo scxunlly assalhed V.S, wNìe she wa^s in lús homc to use the Jacuzai, Mr. Montalvo unquestionably exercisetl bacl juclgmsnlin openitg his masler baú to slttdents, ancl cspecially to one fçrnale such a poor

stuclcnt alone - evcn if Mr, Montalvo's wifc was at home at the time. However, decision did not vlolate the cited Cocle of Ethics provisions by advqscly affecting studertts,

miskeutirrg r:r leglecting thcm, or constituting solicitation oI etlSagenrçnt in a sexunl or fomantis

ís unwortly

rclntionship. Nor clid this questionable decisign, by itself, ¡reon tha{ Mr' Moutnlvo to inutruct or suPervise Youth.

6, SurnmarY and Rcçommendation

staff has not pl,oven il.s all€gations by a propon<Jorance of the evidence, Therelbre, the ALJ reoonrmelrds no sanction in this case.

III. F'INDINGS OÉ'FACT

Board for

Erasmo lvloffalvo, Jr', holcls a Texas Edttcator Cerlifioate issued by lhe.$tate EtlueatorCertifrcation (SBEC), The ce¡riliutrre rryas iu fìtll force and eltect at all li¡r:es rlaterial and relevurt to this aotion,

I on Angust 4,2011, the sralf (staffl of the Texas F.duoation Agency (TEA) Educator Cerrilìo-utíon ancl Stanrlarcls Diìision, ou behqll'of SBEC, serlt a notice of hoariilg and

MONTALVO V. SBEC

SO¡IH DOCKI)'I' NO, 701-l l-8468.8C PROPOSAL FOR DECISION PAGC 53

original petition to Mr. Montulvo proposing revoottion ofl the cortifìcate refened to in Finding of'Fnct No. I .

3 'lle notice of hearjng contni¡red o statgrnorlt o{'the tirne, placo, and natul'c olthc hcaring;

a statcment of ths le¿al authority and jurisdiction under which thc hearing wus to bc lrold;

a ref'erence to the porticula¡ sectio¡rs ofthe stotutes end n¡lcs involvedi und a short, plain statçment of tho matters asset"ted,

4 Thc hearin Kilgore at (he State Oftrce of Clements Building'

300 West I esented bY attorlìeYs Richard J, aPPcal'cd and was rcpresented þy attorneys Malk Robinett arrd Coley Tanncr. The record closed on Marclt 9, 20L2,wilhthe parLics' subnriesion of reply brieTs,

5. 2008, ln k and fielcl soach at the Rio orande oity High school pà

(HS), Llonsolidatcd Independent School District (CISD)' He wns'also oeh at a Cf SD elarnentary school.

6 'I1at same year, StuClerl((also rcfenccl to as "V.S,"), a tbrnale senior rtuder the age of

I

18, w'a^t ou ihe ìrigìr school lrsck tcanl coachçd by Mr' Montalvo.

7 Strrclent I ¿ttencled a t¡ack meet in Donna on March .l , 2008.

I While at the Dorura Inget, V.S, met with a collego recruiter and was offbred a traok dnd field schola¡sllip to attond oolltrge irr Coqrns Clrtisti thc tbllowing yeal 9 V,S, ìqjurçcl hor hamstrirrg al the Donn¡r track meet and did not compstc'

10, V,S, was a star atJrlete hr her seniot yoar, ¿uìd the harnstring ínjury early in the season rvæ an emotional blow 1o her,

ll, District l)ïotocol reqrrirccl that injule$ stuclents be sont to the traincr, 12, Assistant Coach l,inda t,r¡ tolcl V,S. to go to tbe tlaincr, 1.3, Parents of injured athleles do trut have to agree to let their children go fo tlre trainer'

14, V,S, did not visit the trrtiner ahout' her injuly, 15. V,S,'s tnothsr took V,S, to Mcxico for shots to lreat lier injury'

l (¡. 'llere 1s insut'ficient eviclencc to suPport a linding thal Mr, Montalvo prcvcnted or clilcouragecl V.S. from going to the ¡rniner for her injury'

MONTALVO V. SBEC

so^H DocxET NO. 701-ll-8468,DC PROI¡OSÂL FOR DECISTON PACE 54

17, Mr. Morrtalvo did not nllow V.S, to compete in the nexf tluee rneets followirtg tho Donna rnegf ,

tfÌ Iollowìng her injury, V,S, r¡nclerwcnt stretehing, ntb downs, ice baths, ond whirlpool use rundcr Mr, Montalvo's dircction.

l9 v,S. grarJually began to work ùut following her injury, and r€surned aolnpetilrg in early Àpriì2008.

20. Mr. Montlrlvo gavo V,S,, and othor students, rub downs,

21, Tllere is irrsuflicien{ eviclenoe to support a finding that Úrq rub downs wcre sexual and inr'<¡l ved inappropriote touohin g.

On trvo or tlüee oogasions, sludc¡lt athlctss Visitcd Mr, MonlalVo's hotnO to tlse his .lac¡zzi in the master bath. 'fhe nthtetes wore spolts bras or trathing suit tops, and brief "bikers" shorts.

,¿_3, On ono occasion, V.S, werrt alonc to Mr, MontalvO's house to USe the JacVzzi'

2+, 'ì'herc is insuffrciont evidence 10 suppqtl a fincling that Mr. Mont¡lvo rexuolly abused or assnulted V.S. rvhen she went to use the Jasuzzi'

25, There is insuff'rcient evidonce üo suppo¡t a fÌnding thal Mr. Montalvo sexually abused or assaulted V,S, in the field house'

jn approxitnately 480 phone 26, Fronr February through June 2008, Mr, Montalvo ongagcd oalls with Stutlerf I , with ovet 80 t'¡f the calls placed ofter 10:00 p'm'

11 The phole calls were atrout V,S.'s track performançe ¡¡nd elnotional issues.

calls did lle

rot ;late to or coustítute û sexuú¡l or xrrnanlie solicltqtio¡r or rch¡tionship betweeu Mr, Montalvo and V,S,

28, 'lïere is insuJ'tìcient eviclense to support a finding of any inapproprinte touching, or sexual or r.onlantic solicitatior¡ ot relationship, belwecn Mr. Montalvo and V'S'

29, Ther.e is insuflioiçnl evi{ence to support a fincling that Mr, Montatvo knowingly treated \¿.S. it a nranner thar adver.sely alteótecl lrel learning, physicnl h€alÎh, men(flI heallh, or'

saf'ety,

30, 'fhere i¡rsnfticieut eviclonce 1<r suppoÌt a tinding that Mr, Moutalvo ilrtentionally, is

knowingly, or reckJesSly engaged in physical mistrealment, negleot, tlr abuse of V.S.

31, \/,s. gradnated from high school in May 2008 and lef'ì, lbl oolloge tlral Artgus(.

MONTALVO V. SBEC

soAll Doct(tT NO. 701-lI-8468.nC PIIOPOS'{L IOR ÞECISION PAGE 55

JZ, At some point tluring the 2008-2009 acadenric year, V,S, told a c<¡nnselor a[ her college jn the spring of 2008'

ancl her farnily that Mr, Moutalvo had scxualty assnultecl her

33, In 2009, Mr, Montalvo was chargcd rvith two courrts of seson(l-degree felony irnproper rclationiNp b€twoer educator and sturlent, Hc wns indicted in October 2009, and acquittctl ofboth counts follorving ajury lrial,

IV, CONCI,UÍIIONS Oil LAW

1 ,' SBEC has ,turisdiction over this nratter, Tex, Educ, Code $21'03 L

2. SOAH ha.s jurísclíotion ovet the hearing in this prooeeding, includiug rhe authority to jssue a p1optsat for clesision with proposed findings of fact and conolusiorls of lnw, Tex, Gov'l Code ch. 2003.

Proper nncl timely notioe of the henring was provìded to lvfr, Montaivo' Tex'

Gov't Code

3.

ch. 2001.

4, Staff lrad thc btlxler¡ of ploof'

SI3EC muy tnke disoiplinary oction agaiust an eduoator who hos violatod the Eduoator's

5. youlh of tlús state' I 9 Tcx'

Code of Éthi., o, is t nwoittty to inslïct or superviso the Admin, Co<le $ 249,15(bxz) attd (3)'

6. 'lhe foregoitig Finclings of Iast do not support conclusions thatMr, Mont¿lvo violated Standar.ds S,Z, ¡lll-"ài-¡,0 oi tft" Educarors' Code of Ethics, 19 Tex' Admin' Co<le

$ 24?,2(bX3XIl), (E), and (F) [now $ 247'2(3XB), (E)' and (If)]'

a person

The folegoing Fiudings of lfacl do not stlpport a conclusion that Mr' Montalvo is

1, unrvorthy 1o ínstruct or supet'vise tho youth of this state'

Educator

I sBEC is nqt authodzecl [0 (ake disciptinary action agaiust lì.espotrdeut's Texa's Certificate,

SIGNED NlaY 1,2012,

STIANNON KILGORE

AD MINISTR.ATTVB LAW .IU DCE sT ATII O rÍt ç!l QÌ' ADMI N lsTR.{',I'f v}ì HENÙNCS

MONTALVO V. SBEC

CASE NO. 03-13-00370-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN

STATE BOARD FOR EDUCATOR CERTIFICATION, Appellant,

v

ERASMO MONTALVO,

Appellee.

On Appeal from the 200th Judicial District Court of Travis Cqunty, Texas;

Cause No. D-1-GN-12-002991; Before the Honorable Tim Sulak

APPELLANT'S REPLY BRIEF

APPENDIX E

Filed Ín The Digtrict Court of Travís County, Texas

I'IAY 2 1 i3

CAUSE NO. D-1-GN-12-002991

ERASMO MONTALVO, $ IN THE DISTRICT COI.JRT OF Platntffi $ $

v $ TRAVIS COUNTY, TEXAS $

THE STATE BOARD FOR $ EDUCATOR CERTIFICATION, $ Defendant. $ 2OOTH JUDICIAL DISTRICT

FINDINGS OF FAg AND CONqLUS.IONS OF LAW

The State Board for Educator Certification, Defendant, has requested Findings of Fact and Conclusions of Law pursuant to Rule 296 of the Rules of Civil Procedure regarding that part of the Judgment in this case granting Plaintiff s request for a permanent injunction. In accordance with Rule 296, the Court enters the following Findings and Conclusions. To the extent that any fïnding of fact may be construed as a conclusion of law, the Court hereby adopts it as such, Conespondingly, to the extent that any conclusion of law çonstitutes a finding of fact, the Court adopts it as such,

FINDINOS OF FACT

I Erasmo Montalvo, Plaintiff, hæ shown by a preponderance of the evidence, that he will be ineparably harmed if a permanent injunction is not issued prohibiting the Defendant State Board for Educator Certifrcation from treating as revoked or revoking his educator certificate based on the facts and allegations relied on by Defendant in SOAH dooket No'

701-ll-S468,EC, until the appellate court issues its ruling in any appeal øken by Defendant.

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

case, the harm to hím is imminent, It is probable that the Defendant will file a Notice of Appeal, claim that its Notice automatically supersedes the injunction, and represent that Plaintiff s educator certificate is revoked during the pendency of the appeal, (which may involve an indefinite extended period of time), dr:ring which Plaintiff s ability to obtain employment consistent with his experienc€, training, and education, would likely be significantly adversely affected.

3 The competing equities favor granting the injunotion'

CONCLU,SION,S OF LAW

The educator certificate of Erasmo Montalvo, Plaintiff, was wrongfully revoked by Defendant State Board for Educator Certification, because the Boa¡d's decision to do so was:

a, Not supported by substantial evidence;

b. Arbitrary and capricious; and c. Characteùzed by a clearly unwarranted exercise of discretion.

I Because the Board's decision was not supported by substantial evidence to the prejudice of the Plaintiff, the Court is authorized to reverse the Boæd's decision. Gov't Code $2001.174(2XE).

J Because the Board's decision was arbitrary and capricious, the Çourt is authorized to reverse the Board's decision, Gov't Code $2001.174(2XF).

4 Because the Board's deoisíon was characterized by a clearly unwa:ranted exercise of discretion, the Court is authorÍzed to reve¡se the Board's decision' Gov't Code $2001,174(2XF).

5, If Defendant State Board for Educator Certifïcation is not enjoined from treating as revoked or revoking Plaintiffls educator certificate during the pendency of any appeal from the Judgment reversing its action, Plaintiff will suffer harm for which he has no adequate remedy.

6. Under the oircumstances of this case, a permanent injunction is appropriate' ?. Rule 24,2(3) of the Texas Rules of Appellate Procedure authorizes the trial court to decline to permit the judgment to be superseded if Plaintiff posts the security ordered by

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

Signedonthe {Ourof f"tfi ,2013'

TIM S

5

l0