“Further the idea embodied within the phrase [unworthy of the public confidence] is reasonably clear and hence acceptable as a standard of measurement. And in this lies the true constitutional test.”
How later courts described this case
- “Further the idea embodied within the phrase [unworthy of the public confidence] is reasonably clear and hence acceptable as a standard of measurement. And in this lies the true constitutional test.”
Written by the judges who cited it.
The opinion
ACCEPTED
03-13-00370-CV
5055113
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/28/2015 8:22:12 AM
JEFFREY D. KYLE
CLERK
CASE NO. 03-13-00370-CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS AT4/28/2015
AUSTIN 8:22:12 AM
JEFFREY D. KYLE
Clerk
STATE BOARD FOR EDUCATOR CERTIFICATION and
MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
CAPACITY ONLY,
Appellant,
v.
ERASMO MONTALVO,
Appellee.
On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause
No. D-1-GN-12-002991; Before the Honorable Tim Sulak
APPELLANT’S BRIEF
KEN PAXTON ELLEN M. SAMETH
Attorney General of Texas Assistant Attorney General
State Bar No. 17555550
CHARLES E. ROY ADMINISTRATIVE LAW DIVISION
First Assistant Attorney General OFFICE OF THE TEXAS ATTORNEY GENERAL
P. O. Box 12548
JAMES E. DAVIS Austin, Texas 78711-2548
Deputy, Attorney General for Civil Telephone: (512) 936-1838
Litigation Facsimile: (512) 457-4608
E-mail: ellen.sameth@texasattorneygeneral.gov
DAVID A. TALBOT, JR
Chief, Administrative Law Division Attorney for Appellant, State Board for
Educator Certification
April 27, 2015
IDENTITIES OF PARTIES AND COUNSEL
PARTIES TO THE TRIAL COURT’S ORDER:
Plaintiff/Appellant: State Board for Educator Certification and Michael
Berry, the Acting Chief Executive Officer of the State Board for Educator
Certification, in his Official Capacity Only1
Defendant/Appellee: Erasmo Montalvo
COUNSEL:
For Appellant, State Board for Educator Certification:
Ellen M. Sameth
Assistant Attorney General
State Bar No. 17555550
OFFICE OF THE TEXAS ATTORNEY GENERAL
ADMINISTRATIVE LAW DIVISION
P.O. Box 12548
Austin, TX 78711-2548
Telephone: (512) 936-1838
Facsimile: (512) 457-4608
Email: ellen.sameth@texasattorneygeneral.gov
For Appellee, Erasmo Montalvo:
Mark W. Robinett
State Bar No. 17083600
BRIM, ARNETT, ROBINETT,
CONNERS & MCCORMICK, P.C.
2525 Wallingwood Drive, Bldg. 14
Austin, Texas 78746
Telephone: (512) 328-0048, x110
Facsimile: (512) 328-4814
E-mail: mrobinett@brimarnett.com
1
Michael Berry was released as a Defendant by Agreed Order dated March 28, 2013. See App.
C.
ii
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ........................................................ ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES......................................................................................v
STATEMENT OF THE CASE .............................................................................. viii
REQUEST FOR ORAL ARGUMENT .....................................................................x
ISSUES PRESENTED............................................................................................. xi
STATEMENT OF FACTS ..................................................................................... xii
SUMMARY OF THE ARGUMENT ........................................................................2
ARGUMENT & AUTHORITIES .............................................................................3
ISSUE I. .....................................................................................................................4
The trial court erred in failing to find substantial evidence in the
administrative record to support the Board’s Final Decision and Order. .........4
A. The Board has authority to issue sanctions without Code of Ethics
violations. ........................................................................................4
B. The ALJ misinterpreted and misapplied the standard of “unworthy
to instruct.”......................................................................................5
1. The Board requires conduct to support a sanction, it does not
require Code of Ethics violations. .........................................5
ISSUE II. ....................................................................................................................8
The Board properly amended the Proposal for Decision in Compliance with
the Administrative Procedure Act.....................................................................8
A. The Board properly amended the Proposal for Decision to comport
with the findings of fact. ...............................................................8
1. The ALJ’s analysis supports finding poor judgment by
Montalvo. ...............................................................................9
2. The Board’s Order is not arbitrary or capricious. ................10
3. The Board’s interpretation of its rules is to be given
deference. .............................................................................12
4. The Board properly used the findings of fact to conclude that
Montalvo is unworthy to instruct.........................................13
iii
ISSUE III..................................................................................................................16
The Board’s standard of “unworthy to instruct” is not unconstitutionally
vague ...............................................................................................................16
A. The meaning and history of “unworthy to instruct.”.....................16
1. The “unworthy to instruct” language has been a part of
educator parlance since at least 1925...................................16
2. The “unworthy to instruct” standard, and analogous
standards, have been upheld in case law. ............................18
B. “Unworthy to instruct” applies to Montalvo despite the lack of
other disciplinary violations..........................................................22
ISSUE IV. ................................................................................................................24
The trial court abused its discretion in issuing a permanent injunction. .......24
CONCLUSION ........................................................................................................25
PRAYER ..................................................................................................................26
CERTIFICATE OF COMPLIANCE .......................................................................27
CERTIFICATE OF SERVICE ................................................................................28
iv
INDEX OF AUTHORITIES
Cases
Bexar Metro. Water Dist. v. Tex. Comm'n on Envtl. Quality,
185 S.W.3d 546 (Tex. App.—Austin 2006, pet. denied) .............................. 12, 13
Brantley v. Tex. Alcoholic Beverage Comm’n.,
1 S.W.3d 343 (Tex. App—Texarkana 1999, no pet.) ............................................3
Dodd v. Meno,
870 S.W.2d 4 (Tex. 1994) ....................................................................................12
Gerst v. Nixon,
411 S.W.2d 350 (Tex. 1966) ..................................................................................3
Gomez v. Tex. Educ. Agency,
354 S.W.3d 905 (Tex. App.–Austin 2011, pet. denied) .......................................11
In re Gamble,
71 S.W.3d 313 (Tex. 2002....................................................................................24
In re State Bd. for Educator Certification,
No. 13-0537, 2014 Tex. LEXIS 1208; (Tex. December 19, 2014).... ix, 14, 15, 24
In re State Bd. of Educator Certification,
411 S.W.3d 576 (Tex. App.—Austin 2013, orig. proceeding) ..................... ix, viii
Jordan v. State Bd. of Ins.,
334 S.W. 2d 278 (Tex. 1960) ........................................................................ 20, 21
Key Western Life Ins. Co. v. State Board of Insurance,
350 S.W.2d 839 (1961).........................................................................................20
Marrs v. Matthews,
270 S.W. 586 (Tex. Civ. App.—Texarkana 1925, writ ref’d) ..................... passim
Martinez v. Tex. State Bd. of Med. Exam’rs,
476 S.W.2d 400 (Tex. Civ. App.—San Antonio 1972, writ ref’d n.r.e.) .............20
v
McHaney v. Tex. Comm'n on Envtl. Quality,
2015 Tex. App. LEXIS 1903 (Tex. App.— Austin Feb. 27, 2015, no pet.)
(mem.op.)..........................................................................................................3, 24
R.R. Comm'n v. Torch Operating Co.,
912 S.W.2d 790 (Tex. 1995) ..................................................................................4
Rodriguez v. Serv. Lloyds Ins. Co.,
997 S.W.2d 248 (Tex. 1999) ......................................................................... 12, 13
State Bd. for Educator Certification v. Montalvo,
No. 03-12-00723-CV, 2013 Tex. App. LEXIS 4389 (Tex. App.—Austin April 3,
2013, no pet.) (mem. op.) ................................................................................... viii
Storey v. Cent. Hide & Rendering Co.,
226 S.W.2d 615 (Tex. 1950) ................................................................................24
Tex. Alcoholic Beverage Comm’n. v. Sanchez,
96 S.W.3d 483 (Tex. App.—Austin 2002, no pet.)................................................3
Tex. Alcoholic Beverage Comm’n. v. Sierra,
784 S.W.2d 359 (Tex. 1990) ..................................................................................3
Tex. Health Facilities Comm'n v. Charter Med.–Dall., Inc.,
665 S.W.2d 446 (Tex. 1984) ..................................................................................3
Tex. State Bd. of Dental Exam’rs v. Sizemore,
759 S.W.2d 114 (Tex. 1988) ..............................................................................3, 4
TGS NOPEC Geophysical Co. v. Combs,
340 S.W.3d 432 (Tex. 2011) ................................................................................11
Triantaphyllis v. Gamble,
93 S.W.3d 398 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) ................24
Vista Healthcare, Inc. v. Tex. Mut. Ins. Co.,
324 S.W.3d 264 (Tex. App.—Austin 2010, pet. denied) .....................................20
Zimmer US, Inc., v. Combs,
368 S.W.3d 579 (Tex. App.—Austin 2012, no pet.)............................................13
vi
Statutes
Tex. Educ. Code
§ 13.046 ............................................................................................................... 18
§ 13.046(a)(2) .......................................................................................................18
§ 21.035 ................................................................................................................ xi
§ 21.041(7), (8); 19 .................................................................................................5
§§ 21.031(a), .041(b)(1)(7)(8) ..............................................................................23
§§ 21.031(a); 21.041(b)(1)(7).................................................................................4
§ 21.041(7) (West 2012).........................................................................................3
Tex. Gov’t Code
§ 2001.058(e) ..........................................................................................................9
§ 2001.058(e)(1) ...............................................................................................9, 26
§ 2001.175(e) ..........................................................................................................4
Other Authorities
74th Leg., R.S. ch. 260, § 58(1), 2003 Tex. Gen. Laws 2498 ..............................18
SBEC Disciplinary Policy ............................................................................. 21, 25
Tex. Rev. Civ. Statutes 1911, art. 2884 [2814] ...................................................18
Tex. Rev. Civ. Statutes art. 2814 ............................................................................5
Rules
19 Tex. Admin. Code
§ 247 .......................................................................................................................7
§ 249 .......................................................................................................................7
§ 249.15 ................................................................................................................17
§ 249.15(a), (b)(3) ..................................................................................................5
§ 249.15(b)(2) ................................................................................... xi, 2, 5, 17, 22
§ 249.3(45)............................................................................................................17
§ 249.5 ..............................................................................................................4, 21
§§ 249.15(a)(4) .....................................................................................................17
§§ 249.3(59)............................................................................................................2
vii
STATEMENT OF THE CASE
Trial Court Disposition: The trial court issued a Judgment reversing the
Board’s Final Decision and Order and issuing a
permanent injunction against the Board. CR2 3, or
see App. A.
Trial Court: 200th District Court, Travis County, Texas, before
the Honorable Tim Sulak.
Course of Proceedings: The Board issued a Final Decision and Order on
August 10, 2012. 1 AR 67, or see App. B.
A timely motion for rehearing was filed and
overruled by operation of law.
On September 25, 2012, Montalvo filed an
Original Petition for Temporary Restraining Order,
Temporary Injunction and Permanent Injunction.
The trial court issued both a temporary restraining
order and temporary injunction. Following the
filing of an interlocutory appeal, this Court
reversed and dissolved the temporary injunction
for lack of a trial setting in the order. State Bd. for
Educator Certification v. Montalvo, No. 03-12-
00723-CV, 2013 Tex. App. LEXIS 4389 (Tex.
App.—Austin April 3, 2013, no pet.) (mem. op.).
On March 28, 2013, the trial court issued an
Agreed Order Dismissing Michael Berry as a
defendant. See App. C.
On April 29, 2013, the trial court issued its
Judgment reversing the Board’s Order and issuing
2
“CR” refers to the Clerk’s Record. The number following refers to the page number. “AR”
refers to the Administrative Record as this matter involved administrative proceedings at the
agency level. The Administrative Record consists of nine volumes. The Administrative Record
will be cited as, e.g., 2 AR *, where “2" refers to the volume and “*” represents a page number
within the given volume. “FOF” and “COL” refer to findings of fact and conclusions of law,
respectively.
viii
a permanent injunction (effective until a ruling on
this appeal) against the Board, prohibiting it from
treating Montalvo’s educator certificate as
revoked, revoking his certificate, or superseding
the court’s Judgment following payment of a bond
by Montalvo, should the Board appeal.
The Board filed a Petition for Writ of Mandamus
and a Motion for Temporary Relief, both of which
the Third Court of Appeals denied. In re State Bd.
of Educator Certification, 411 S.W.3d 576 (Tex.
App.—Austin 2013, orig. proceeding).
The instant appeal was abated while the Board
sought relief in the Texas Supreme Court by filing
a Petition for Writ of Mandamus. The Supreme
Court denied relief. In re State Bd. for Educator
Certification, No. 13-0537, 2014 Tex. LEXIS
1208, (Tex. Dec. 19, 2014).
ix
REQUEST FOR ORAL ARGUMENT
Pursuant to Rule 75, Texas Rules of Appellate Procedure, Appellant, State
Board for Educator Certification, requests oral argument in this case. Because the
issues involved concern the Board’s interpretation and application of a principle
central to its authority to regulate educators, the Board believes that oral argument
will assist the Court in its analysis and resolution of this case.
x
ISSUES PRESENTED
ISSUE I.
The trial court erred in failing to find substantial evidence in the
administrative record to support the Board’s Final Decision and Order.
ISSUE II.
The Board properly amended the Proposal for Decision in
compliance with the Administrative Procedure Act.
ISSUE III.
The Board’s standard of “unworthy to instruct” is not
unconstitutionally vague.
ISSUE IV.
The trial court abused its discretion in issuing a permanent injunction.
xi
STATEMENT OF FACTS
Erasmo Montalvo, Appellee, holds an educator certificate. Montalvo was
employed as a middle school teacher and served as a track and field coach at the
high school in the Rio Grande City Consolidated Independent School District at
the time the disciplinary case against him arose. 1 AR 62 (FOF #5), or see App. D.
VS was a female senior high school student, under the age of 18, and an athlete on
the track team, coached by Montalvo. 1 AR 62 (FOF #6). The Texas Education
Agency (TEA), as the administrative arm of the Board, (see Tex. Educ. Code
§ 21.035,3) opened a disciplinary complaint against Montalvo, and filed its
Original Petition with the State Office of Administrative Hearings on August 2,
2011. In its Original Petition, TEA alleged that Montalvo is unworthy to instruct
or supervise the youth of this State (hereinafter “unworthy to instruct”), as well as
four violations of the Educators’ Code of Ethics. 2 AR 75. Being “unworthy to
instruct” is not a Code of Ethics violation but is a separate finding that the Board
may make against an educator regardless of whether there are violations of the
Code of Ethics. Upon finding that an educator is unworthy to instruct, the Board
has authority to sanction the educator’s certificate, as it did in Montalvo’s case.
See 1 AR 67; 19 Tex. Admin. Code § 249.15(b)(2), attached and incorporated
herein as App. E.
3
All references to statutes and rules refer to those in effect at the time of the conduct made the
basis of the underlying administrative proceeding.
xii
Montalvo’s specific conduct alleged by TEA includes: allowing VS, both
alone and with other students, to use the Jacuzzi in the master bath of his home;
asking VS lie on the bed in his master bedroom so he could massage her injured
leg; engaging in sexual relations with VS on school property; exchanging over 400
phone calls with VS, including many late at night; and, engaging in inappropriate
sexual contact with VS. 2 AR 73–75. In October of 2009, after hearing from VS
what had occurred, her college counselor filed a complaint with the Starr County
District Attorney’s Office, which indicted Montalvo. Following a trial for sexual
assault, Montalvo was acquitted. I AR 64 (FOF #33), or see App. D. Between the
time that the criminal complaint was filed and the time that Montalvo was found
not guilty, he was on paid administrative leave with the school district. 1 AR 43.
Following the verdict Montalvo was allowed to resume his duties with the school
district. 1AR 43.
The Administrative Law Judge found that Montalvo had not committed any
of the alleged Code of Ethics violations, was not unworthy to instruct, and that the
Board was not authorized to sanction him. 1 AR 64 (COL #6–8), or see App. D.
The Board issued its Final Decision and Order on August 10, 2012, revoking
Montalvo’s educator certificate. 1 AR 68, or see App. B. In doing so, the Board
xiii
adopted all thirty-three Findings of Fact in the PFD4 without change. Of the eight
Conclusions of Law, the Board modified two, and added a ninth.
Montalvo sought injunctive relief and judicial review of the Board’s Final
Decision and Order. On September 25, 2012, the trial court issued an ex parte
Temporary Restraining Order and, on October 9, 2012, following a hearing, a
Temporary Injunction. CR 96, 113.
The temporary injunction was overturned following an interlocutory appeal
by the Board, because the injunction was lacking a date for a trial on the merits.
After the trial on the merits, the trial court reversed the Board’s Final Decision and
Order, and issued a permanent injunction barring the Board from treating
Montalvo’s educator certificate as having been revoked. See App. A. The
injunction is to remain in effect pending the appellate court’s ruling on the Board’s
appeal.
4
Proposal for Decision issued by an Administrative Law Judge following a contested hearing
before the State Office of Administrative Hearings (SOAH).
xiv
CASE NO. 03-13-00370-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
STATE BOARD FOR EDUCATOR CERTIFICATION and
MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
CAPACITY ONLY,
Appellant,
v.
ERASMO MONTALVO,
Appellee.
On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause
No. D-1-GN-12-002991; Before the Honorable Tim Sulak
APPELLANT’S BRIEF
TO THE HONORABLE THIRD COURT OF APPEALS:
The trial court erred in reversing Appellant State Board for Educator
Certification’s (Board) Final Decision and Order, which revoked Appellee Erasmo
Montalvo’s (Montalvo) educator certificate after finding that it is not supported by
substantial evidence, and is arbitrary and capricious. Further, the trial court erred in
issuing a permanent injunction without balancing the equities. Accordingly, this
1
Court should reverse the Judgment of the trial court, and affirm the Board’s Final
Decision and Order.
SUMMARY OF THE ARGUMENT
There is substantial evidence in the record to support the Board’s Final
Decision and Order, which found that Montalvo is unworthy to instruct. In its
pleadings before SOAH, the Board alleged that Montalvo is not only unworthy to
instruct, but also violated four standards contained in the Educators’ Code of
Ethics, as well as other standards contained in the Board’s rules. 2 AR 75; see 19
Tex. Admin. Code chs. 247, 249. The ALJ did not find rule violations, or that
Montalvo is unworthy to instruct. 1 AR 64 (COL #6–7), or see App. D. The
Board adopted the ALJ’s findings of fact without changes. 1 AR 67. The Board
further determined that, based solely on Montalvo’s conduct as found by the ALJ in
FOF #11, 14, 18, 20, 22, 23, and 26, and Board standards, policies, and prior
decisions, Montalvo is unworthy to instruct or supervise the youth of this state. 1
AR 68, or see App. A; 1 AR 62–63 or see App. D The Board has authority to find
an educator unworthy to instruct based on conduct. 19 Tex. Admin. Code
§§ 249.3(59), .15(b)(2), or see Apps. E, F.
Furthermore, the “unworthy to instruct” standard is not unconstitutionally
vague so as to deprive Montalvo of due process, and has passed muster with Texas
2
appellate courts. Marrs v. Matthews, 270 S.W. 586, 589 (Tex. Civ. App.—
Texarkana 1925, writ ref’d).
ARGUMENT & AUTHORITIES
STANDARD OF REVIEW
Review of disciplinary decisions of the Board proceeds under the APA and
the standard of review is that of substantial evidence. Tex. Educ. Code § 21.041(7)
(West 2012). Under that standard the question for the reviewing court is the
reasonableness of the Board’s Order, not its correctness. Tex. Health Facilities
Comm'n v. Charter Med.–Dall., Inc., 665 S.W.2d 446, 452–453 (Tex. 1984); Tex.
Alcoholic Beverage Comm’n. v. Sierra, 784 S.W.2d 359, 360 (Tex. 1990);
Brantley v. Tex. Alcoholic Beverage Comm’n. 1 S.W.3d 343, 347 (Tex. App—
Texarkana 1999, no pet.); Tex. Alcoholic Beverage Comm’n. v. Sanchez, 96
S.W.3d 483, 489 (Tex. App.—Austin 2002, no pet.). The reviewing court cannot
substitute its own judgment for that of the Board. Tex. State Bd. of Dental Exam’rs
v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988). “The true test is not whether the
agency reached the correct conclusion, but whether some reasonable basis exists in
the record for the action taken by the agency.” Charter Med.-Dall., Inc., 665
S.W.2d at 452 (citing Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex. 1966)); McHaney
v. Tex. Comm'n on Envtl. Quality, 2015 Tex. App. LEXIS 1903 (Tex. App.—
Austin Feb. 27, 2015, no pet.) (mem.op.) (“We must sustain the agency's action if
3
it is supported by substantial evidence, meaning that the evidence is such that
reasonable minds could have reached the conclusion that the agency must have
reached in order to justify its action.”). Further, the administrative order is given
deference because of the agency’s expertise with the subject matter. R.R. Comm'n
v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995).
In applying the substantial evidence standard, there is a presumption that the
agency’s order is supported by substantial evidence in the record, and the burden is
on the one challenging that order to show that it is not. Sizemore, 759 S.W.2d at
116. Review is restricted to the administrative record. Tex. Gov’t Code
§ 2001.175(e).
ISSUE I.
The trial court erred in failing to find substantial evidence in the
administrative record to support the Board’s Final Decision and Order.
A. The Board has authority to issue sanctions without Code of Ethics
violations.
One of the most basic functions of the Board is to regulate educator conduct
and issue sanctions. Tex. Educ. Code §§ 21.031(a); 21.041(b)(1)(7); 19 Tex.
Admin. Code § 249.5, or see App. I. The Board has promulgated a Code of Ethics,
the violation of which may result in a sanction ranging from a non-inscribed
(private) reprimand to permanent revocation of the individual’s educator
4
certificate. Tex. Educ. Code § 21.041(7), (8); 19 Tex. Admin. Code, Ch. 247, §
249.15(a), (b)(3).
But, importantly, aside from the Code of Ethics, an educator is subject to
being sanctioned if found “unworthy to instruct.” 19 Tex. Admin. Code
§ 249.15(b)(2), see App. E. As early as 1911, Tex. Rev. Civ. Statutes, art. 2882
[2814] made reference to the authority of the then-State Superintendent of Public
Instruction to cancel a certificate “upon satisfactory evidence that the holder
thereof “[ . . . ] is a person unworthy to instruct the youth of this State[.]” See App.
G.; Marrs, 270 S.W. at 588. The Marrs case (discussed in more detail in section
B, below) is squarely on point as it involves an appeal based on the vagueness and
uncertainty of the term “unworthy,” as used in Tex. Rev. Civ. Statutes art. 2814, in
effect at that time. See App. G, attached; Marrs, 270 S.W. 586, 588.
By choosing to become part of any regulated profession, the license holder is
consciously and voluntarily making a choice to abide by the rules of that
profession.
B. The ALJ misinterpreted and misapplied the standard of “unworthy to
instruct.”
1. The Board requires conduct to support a sanction, it does not require
Code of Ethics violations.
The Board’s complaint alleged that Montalvo’s conduct indicates that he is a
person unworthy to instruct, and that he violated various disciplinary rules of the
5
Board. 2 AR 75. The ALJ found that none of the alleged violations were
substantiated. 1 AR 63–64 (FOF # 16, 21, 24, 25, 28–30, and COL #6–7), or see
App. D. To the contrary, the Findings of Fact support the Board’s action of
revoking Montalvo’s certificate because he is unworthy to instruct, including:
FOF #11 District protocol required that injured
students he sent to the trainer. (1 AR 62);
FOF #14 VS did not visit the trainer about her injury.
(1 AR 62);
FOF #18: Following her injury, VS underwent
stretching, rub downs, ice baths, and
whirlpool use under Mr. Montalvo’s
direction. (1 AR 63);
FOF #20: Mr. Montalvo gave VS, and other students,
rub downs. (1 AR 63);
FOF #22: On two or three occasions, student athletes
visited Mr. Montalvo’s home to use his
Jacuzzi in the master bath. The athletes
wore sports bras or bathing suit tops, and
brief “bikers” shorts. (1 AR 63);
FOF #23: On one occasion, VS went alone to Mr.
Montalvo’s house to use the Jacuzzi. (1 AR
63);
FOF #26: From February through June 2008, Mr.
Montalvo engaged in approximately 480
phone calls with Student 1,5 with over 80 of
the calls placed after 10:00 p.m. (1 AR 63).
5
Student 1 and VS are the same person.
6
Montalvo did not challenge these findings. It is clear that there is substantial
evidence in the record for the Board to find that Montalvo is unworthy to instruct
based on his conduct, even though the ALJ failed to find a basis upon which the
Board could sanction Montalvo. There is testimony in the record attesting to the
fact that allowing students to come to your home to use the Jacuzzi in the master
bathroom is inappropriate and “unethical” (testimony of James Meguire, Head
Athletic Trainer at Rio Grande City High School, 4 AR 275, TR 295:21–296:5),
and that it is inappropriate (testimony of Rey Ramirez, Athletic Director at the Rio
Grande ISD, 4 AR 261, TR 241:13–18). There is also testimony that engaging in
over 400 telephone calls with a student in a four month period is a “little
excessive” and inappropriate (testimony of Rey Ramirez, 4 AR 261 TR 241:23–
242:2).
What the ALJ failed to grasp is that Montalvo’s conduct, as found by FOF
#11, #14, #18, #20, #22–23, and #26, speaks for itself in terms of demonstrating a
serious lack of judgment. These seven findings of fact indicate Montalvo’s
conduct – he did not object to any of them. It is that lack of judgment, leading to
Montalvo’s inappropriate and unacceptable behavior as an educator, which
indicates his unworthiness to instruct; violations of the Code of Ethics are
unnecessary.
7
ISSUE II.
The Board properly amended the Proposal for Decision in
Compliance with the Administrative Procedure Act.
A. The Board properly amended the Proposal for Decision to comport with
the findings of fact.
The Board adopted, verbatim, all Findings of Fact and the first six of the
eight Conclusions of Law, modifying two, and adding one. The two Conclusions
of Law, as found by the ALJ, that are in issue are:
7. The foregoing Findings of Fact do not support a
conclusion that Mr. Montalvo is a person unworthy
to instruct or supervise the youth of this state.
8. SBEC is not authorized to take disciplinary action
against Respondent’s Texas Educator Certificate.
I AR 64. The Board modified those conclusions, and added a ninth one in its Final
Decision and Order:
7. Based on Findings of Fact 11, 14, 18, 20, 22, 23
and 26, Respondent exceeded the bounds of the
proper educator–student relationship and is a
person unworthy to instruct or supervise the youth
of this state.
8. SBEC is authorized to take disciplinary action
against Respondent’s Texas Educator Certificate.
9. Respondent’s educator certificate should be
sanctioned.
8
Based on Montalvo’s conduct as found in the Findings of Fact, there is
nothing arbitrary or capricious about the Board’s Final Decision and Order. It is
reasonable, given the Findings of Fact, for a state licensing board charged with
regulating educator conduct in an effort to ensure the safety of schoolchildren, to
find that Montalvo’s judgment and subsequent actions placed those children at
risk.
Further, the changes were made by the Board in compliance with Tex. Gov’t
Code § 2001.058(e); they are supported by substantial evidence in the record (as
noted by the references to the specific findings of fact relied upon); were made, as
permitted under Tex. Gov’t Code section 2001.058(e)(1), because the ALJ
misinterpreted and misapplied the Board’s rule regarding “unworthy to instruct;”
and were explained in the Board’s Final Decision and Order, tying the findings to
the Board’s philosophy and perspective. I AR 67–69, or see Appendix B.
1. The ALJ’s analysis supports finding poor judgment by
Montalvo.
In her analysis of the evidence, the ALJ noted the following:
“A coach’s talking to a student by telephone 480 times
over five months is certainly a matter to trigger concern.”
I AR 59 (App. D);
“Mr. Montalvo unquestionably exercised bad judgment
in opening his master bath to students, and especially to
one female student alone—even if Mr. Montalvo’s wife
was at home at the time.” 1 AR 61 (App. D).
9
Thus, the ALJ found at least two of Montalvo’s decisions to be of
questionable judgment and a cause for concern despite the conclusion in the PFD
that the Board has no basis upon which to sanction his certificate. Based on the
totality of Montalvo’s questionable actions, the Board, as the final arbiter of the
sanction, properly determined that Montalvo is unworthy to instruct or supervise.
The Marrs decision is instructive, because it speaks to educator “qualities.”
See Marrs, 270 S.W. at 588. In fact, what the Marrs Court opines is that there are
“many characteristics which may and should be considered in passing upon the
issue of unworthiness in a teacher” and that they are too many and varied to
enumerate. Id. at 588. The judgment of an educator is integral to that educator’s
worthiness, or unworthiness, to instruct or supervise the youth of this state.
2. The Board’s Order is not arbitrary or capricious.
As shown by both the Findings of Fact and the concerns found by the ALJ in
her analysis of Montalvo’s conduct, there is clearly a basis for reasonable minds to
come to the same conclusion that the Board came to, that is, to find that Montalvo
is unworthy to instruct. The Board, as was the ALJ, is concerned about
Montalvo’s judgment and behavior but, unlike the ALJ, the Board also correctly
interpreted and applied the Findings of Fact to find that Montalvo is unworthy to
instruct.
10
Reiterating the standard involved in a substantial evidence appeal, the
question is not the correctness of the agency’s order, but its reasonableness. To be
“arbitrary and capricious,” there must be a lack of guiding principles:
When there is vagueness, ambiguity, or room for policy
determinations in a statute or regulation, we generally
defer to the agency's interpretation unless it is “plainly
erroneous or inconsistent with the language of the statute,
regulation, or rule.” TGS NOPEC Geophysical Co. v.
Combs, 340 S.W.3d 432, 438 (Tex. 2011). But this
deference to the Board's interpretation is not conclusive
or unlimited—we defer only to the extent that the Board's
interpretation is reasonable.
Gomez v. Tex. Educ. Agency, 354 S.W.3d 905, 912 (Tex. App.–Austin 2011, pet.
denied). The Board’s “unworthy to instruct” determination is rationally related to
Montalvo’s conduct; even the ALJ expressed concern about that conduct in her
analysis of the evidence. It is reasonable for the Board to be concerned about
Montalvo allowing students to use the Jacuzzi in his master bath, including on one
occasion VS, a female under the age of 18, alone. It is equally reasonable for the
Board to be concerned about hundreds of phone calls having taken place during a
four–month period between VS and Montalvo. Those facts are just two of the
many taken into account when the Board found Montalvo to be unworthy to
instruct. Moreover, Montalvo did not appeal any of the findings of fact in his suit
for judicial review. Montalvo’s conduct goes beyond the fact that he did not
11
violate the Code of Ethics; what matters is that the inappropriate conduct itself
occurred.
3. The Board’s interpretation of its rules is to be given deference.
The “unworthy to instruct” standard is broader than Code of Ethics or other
standards. As a result, whether or not Montalvo violated the Board’s rules is not
dispositive of whether or not he is “unworthy to instruct.” The ALJ’s conclusion
that the Board cannot sanction Montalvo’s certificate is an incorrect interpretation
of the Board’s rules, philosophy, and Disciplinary Policy. The Board has expertise
and a central role in protecting the welfare of schoolchildren and educators.
Because of that, Board’s conclusion finding Montalvo lacking in the judgment
necessary to be a role model for students and to protect them, must be given
deference.
The Board’s interpretation of its statutes and rules is to be given “serious
consideration, as long as the construction is reasonable and does not contradict the
plain language of the statute.” Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994); Bexar
Metro. Water Dist. v. Tex. Comm'n on Envtl. Quality, 185 S.W.3d 546, 550 (Tex.
App.—Austin 2006, pet. denied) (“We give great weight to the agency's
interpretation of its own rules and regulations, although such interpretation is not
binding on this Court.”). Administrative rules are ordinarily construed in the same
manner as statutes. Rodriguez v. Serv. Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.
12
1999). “Unless a rule is ambiguous, we follow the rule's clear language; when
there is vagueness, ambiguity, or room for policy determinations in a rule, we
defer to the agency's interpretation unless it is plainly inconsistent with the
language of the rule.” (Emphasis added). Zimmer US, Inc., v. Combs, 368 S.W.3d
579, 583 (Tex. App.—Austin 2012, no pet.). Further, agencies “must be afforded
sufficient flexibility to determine and carry out [their] clear legislative mandate.”
Bexar Metro., 185 S.W. 3d at 551.
There is nothing inconsistent or unreasonable about the Board’s
interpretation of the “unworthy to instruct” language. To force the Board to wait
for a proven injury to a student is asking it to abandon its duty to protect
schoolchildren. Because Montalvo’s judgment and behaviors as an educator are
questionable, the Board’s determination that Montalvo is unworthy to instruct
should be accorded deference and upheld upon the evidence contained in the
record. The fact that the ALJ concluded that no ethical standards were violated
and that Montalvo is not unworthy to instruct is irrelevant to the Board’s
determination, based on the facts recited in the PFD, that Montalvo is unworthy to
instruct.
4. The Board properly used the findings of fact to conclude that
Montalvo is unworthy to instruct.
It is clear from the discussion of the evidence in the PFD that the ALJ
analyzed each piece of evidence in terms of whether or not it demonstrated a
13
violation of a particular rule or standard, and if it indicated that Montalvo is
unworthy to instruct. But from the Board’s perspective, unworthiness to instruct is
not necessarily based on individual findings indicating poor judgment or ethical
violations but, rather, on the totality of findings. The fact that the ALJ found at
least two categories of behavior by Montalvo (excessive phone calls, and allowing
students to use the Jacuzzi in his master bath at home) to be questionable but not
indicative of Montalvo’s being unworthy to instruct, is not the end of the analysis.
In her concurring opinion in In re State Bd. for Educator Certification, No.
13-0537, 2014 Tex. LEXIS 1208 (Tex. December 19, 2014), Justice Guzman
wrote:
I also write separately today because I believe the record
before us fails to affirmatively indicate that the trial court
considered the potentially significant harm to
schoolchildren before effectively reinstating Erasmo
Montalvo's educator certificate pending the outcome of
the appeal.
2014 Tex. LEXIS 1208 at *20. Justice Guzman further opined:
But of at least equal import is the interest of
schoolchildren in not being exposed to the harm of
interaction with a teacher who fails to understand the
proper bounds of the student-teacher relationship. The
record before us reflects the trial court gave only cursory
(if any) consideration to the safety and welfare of Texas
students, declaring only that “[t]he competing equities
favor granting the injunction.” But evidence undisputedly
indicates that Montalvo, a high school track and field
coach and an elementary school physical education
coach, allowed a teenage female student—wearing only a
14
sports bra and biker shorts—to use the Jacuzzi in the
master bathroom of his home while no one else was
present, called that female student over 480 times over a
four-month period (with over 80 calls occurring after
10:00 p.m.), gave several female athletes “rubdowns”
and ice baths, and failed to follow district protocol to
send an injured athlete to the trainer. The State Board for
Educator Certification determined these actions
exceeded the bounds of the proper educator-student
relationship and violated the trusted position of authority
afforded to Texas school teachers. Allowing Montalvo to
continue teaching after willingly exceeding the bounds of
the proper student-teacher relationship could
substantially harm the safety and welfare of Texas
schoolchildren.
Id. at *23–24 (emphasis added). While Justice Guzman was discussing the
issuance by the trial court of its injunction against the Board while the case is on
appeal, her observations clearly relate equally as well to the merits of this case and
go to the heart of the “unworthy to instruct” issue.
The Board has experience, expertise, and a thorough understanding of what
it means to find an educator to be unworthy to instruct. It is the Board’s
interpretation of the phrase, “unworthy to instruct,” which dictates whether or not
the pieces of evidence, as found by the ALJ, support such a finding. In this case,
there are no specific Code of Ethics or other rule violations. And, while individual
facts may not support a finding that Montalvo is unworthy to instruct, the Board
has explained that it is all of those findings together that indicate to it, that
Montalvo is unworthy to instruct. I AR 68–69, or see App. B. The Board’s Final
15
Decision and Order cites to seven findings of fact – the findings that speak to
Montalvo’s conduct and that went unchallenged in the trial court – found by the
ALJ that support its conclusion that Montalvo is unworthy to instruct.
In summary, the Board found that, based on the totality of circumstances,
Montalvo exceeded the boundaries of an appropriate educator-student relationship,
and is unworthy to instruct.
ISSUE III.
The Board’s standard of “unworthy to instruct” is not
unconstitutionally vague.
A. The meaning and history of “unworthy to instruct.”
1. The “unworthy to instruct” language has been a part of educator
parlance since at least 1925.
The standard of “unworthy to instruct” is not unconstitutionally vague or
otherwise a violation of Montalvo’s due process rights. The standard has a long
history with educators, in both law and case law. In fact, other professions have
analogous standards which have also been upheld.
The “unworthy to instruct” language appears in several places in the Board’s
rules. It is first referenced in § 249.3, the “Definitions” section relating to
disciplinary proceedings:
16
Unworthy to instruct or to supervise the youth of this
state—the determination that a person is unfit to hold a
certificate under the TEC, Chapter 21, Subchapter B,6 or
to be allowed on a school campus under the auspices of
an educator preparation program.
19 Tex. Admin. Code § 249.3(45), or see App. F. The next reference is contained
in § 249.15(b)(2):
§ 249.15. Disciplinary Action by State Board for
Educator Certification
(a) Pursuant to this chapter, the State Board for Educator
Certification (SBEC) may take any of the following
actions:
...
(4) revoke or cancel, which includes accepting the
surrender of, a certificate without opportunity for
reapplication for a set term or permanently; or
...
(b) The SBEC may take any of the actions listed in
subsection (a) of this section based on satisfactory
evidence that:
...
(2) the person is unworthy to instruct or to supervise
the youth of this state;
19 Tex. Admin. Code §§ 249.15(a)(4), (b)(2) (emphasis added), or see App. E.
Thus, § 249.15 expressly authorizes the Board to revoke an educator certificate
based on being found “unworthy to instruct.”
6
Chapter 21, Subchapter B of the Texas Education Code is the chapter governing
the certification of educators.
17
Section 13.046 of the Texas Education Code (now repealed), in noting when
an educator certificate is subject to cancellation, referenced “unworthy to instruct”:
(a) Any teacher's certificate issued under the provisions
of this code or under any previous statute relating to the
certification of teachers may be suspended or cancelled
by the state commissioner of education under any one or
more of the following circumstances:
...
(2) on satisfactory evidence that the holder is a person
unworthy to instruct the youth of this state; or
(emphasis added). Tex. Educ. Code § 13.046(a)(2) (Repealed by Acts of May 30,
1995, 74th Leg., R.S. ch. 260, § 58(1), 2003 Tex. Gen. Laws 2498. When the
Board came into existence, in 1995, various statutes were repealed, including
§ 13.046, and others promulgated. Even prior to § 13.046, reference can be found
to the authority of the then-State Superintendent of Public Instruction to cancel a
certificate “upon satisfactory evidence that the holder thereof “[ . . . ] is a person
unworthy to instruct the youth of this State. Tex. Rev. Civ. Statutes 1911, art.
2884 [2814]. See App. G.
2. The “unworthy to instruct,” and analogous standards, have been
upheld in case law.
Case law in Texas referencing “unworthy to instruct” also goes back at least
as far as 1925:
18
The contention is that the term “unworthy,” as used in
article 2814, is too vague and uncertain to legally define
a disqualification to further hold a teacher's certificate.
Marrs, 270 S.W. at 588. Thus, in addressing Montalvo’s assertion that the
standard of “unworthy to instruct” is vague and ambiguous, the Marrs case is
directly on point. The Court opined:
The word “unworthy,” as used in common parlance, has
a well-defined signification. As here used, it means the
lack of “worth”; the absence of those moral and mental
qualities which are required to enable one to render the
service essential to the accomplishment of the object
which the law has in view. It may also include those
positive traits of character which, notwithstanding
excellent educational attainments, unfit one to impart
proper instruction to the young. To call one “unworthy”
is to impute moral delinquency to a degree of unfitness
for the work in hand. There are many characteristics
which may and should be considered in passing upon the
issue of unworthiness in a teacher in the public schools.
Different minds might reach different conclusions as to
what qualities of character should render one unworthy
to hold a certificate to teach. But there can be no
difference of opinion about the fact that an unworthy
person should not be permitted to teach in the public
schools. What qualities, or lack of qualities, should
render one unworthy would be difficult for legislative
enumeration. They are so numerous, and their
combinations so varied in different individuals, that a
statute which undertakes to be more specific would either
be incomplete, or so inflexible as to defeat the ends
sought. In the very nature of the subject there must be
lodged somewhere a personal discretion for determining
who are the “unworthy.”
19
(Emphasis added). Id. Aside from its detailed explanation of “unworthy to
instruct,” this passage in Marrs makes it clear that it is impossible to legislate all
circumstances in which one may be found unworthy to instruct. The Marrs case
has not been overruled.
Other cases upholding language that is analogous to “unworthy to instruct”
in that the language is not susceptible to exact definition and has been attacked as
too vague and ambiguous to be upheld, include: Jordan v. State Bd. of Ins., 334
S.W. 2d 278, 280 (Tex. 1960) (“Further the idea embodied within the phrase
[unworthy of the public confidence] is reasonably clear and hence acceptable as a
standard of measurement. And in this lies the true constitutional test.”); Martinez v.
Tex. State Bd. of Med. Exam’rs, 476 S.W.2d 400, 404 (Tex. Civ. App.—San
Antonio 1972, writ ref’d n.r.e.) (“The idea embodied within the phrase ‘grossly
unprofessional or dishonorable conduct of a character which in the opinion of the
Board is likely to deceive or defraud the public’ is reasonably clear.”); Key
Western Life Ins. Co. v. State Board of Ins., 350 S.W.2d 839 (1961), (authorizing
disapproval of a policy form if it "encourages misrepresentation"); Vista
Healthcare, Inc. v. Tex. Mut. Ins. Co., 324 S.W.3d 264, 274 (Tex. App.—Austin
2010, pet. denied) (“ . . . no requirement here that every detail of what constitutes
‘fair and reasonable’ . . . be set out by rule to provide Vista with fair notice of the
standards by which individual fee disputes will be adjudicated.”). And, as in
20
Marrs, these opinions support the proposition that the fact situations to which civil
statutes might apply are simply too numerous to legislate.
In Jordan v. State Bd. of Ins., 334 S.W. 2d 278, 281 (Tex. 1960), the Texas
Supreme Court includes in its opinion a list (citing to K. Davis, Administrative Law
Treatise, § 2.03 (1st ed. 1958)) of various “general” phrases – i.e., the same genre
as “unworthy to instruct” – which have passed muster with the United States
Supreme Court;
[T]he standards the Supreme Court [of the United States]
has held adequate include ‘just and reasonable,’ ‘public
interest,’ ‘unreasonable obstruction’ to navigation,
‘reciprocally unequal and unreasonable,’ ‘public
convenience, interest, or necessity,’ ‘tea of inferior
quality,’ ‘unfair methods of competition,’ ‘reasonable
variations,’ ‘unduly or unnecessarily complicate the
structure’ of a holding company system or ‘unfairly or
inequitably distribute voting power among security
holders.’”
The Jordan case also specifically cites to Marrs. See Jordan, 334 S.W. 2d at 281.
As evidence of just how central the concept of “unworthy to instruct” and
the Marrs case is to the Board and disciplinary actions, the Board cites to Marrs in
its Disciplinary Policy. 7 AR 688–690, or see App. J. Portions of the Board’s
Disciplinary Policy are now stated in rule (although this was not the case until
December 23, 2013), including its explanation of “unworthy to instruct.” 19 Tex.
Admin. Code 249.5.
21
B. “Unworthy to instruct” applies to Montalvo despite the lack of other
disciplinary violations.
The allegation that Montalvo is “unworthy to instruct or supervise the youth
of this state” stands as a separate basis for sanctioning an educator certificate and
does not rely on a violation of the Code of Ethics. 19 Tex. Admin. Code
§ 249.15(b)(2); I AR 64 (COL #5). The ALJ’s Findings of Fact, adopted verbatim
by the Board in its Final Decision and Order, support a finding of “unworthy to
instruct.” Thus, for example, while the ALJ did not find any romantic
underpinnings in the 480 phone calls over a four month period between Montalvo
and VS and therefore no violations of the Code of Ethics, the Board took exception
to the fact that there were 480 calls, determining that such an excessive number of
calls crossed the bounds of an appropriate educator-student relationship. I AR 67–
68. As another example, the fact that the ALJ failed to find that Montalvo had
sexually abused or assaulted VS when she went alone to Montalvo’s house to use
the Jacuzzi did not sway the Board, which, instead, took exception to the fact that
Montalvo allowed VS come to his home alone to use the Jacuzzi in his master
bathroom. 1 AR 67–68. The Board found that this conduct makes Montalvo
unworthy to instruct by “crossing the bounds of an appropriate student-teacher
relationship.” I AR 69, or see App. B
There is no doubt that allowing VS, a female high school student, into his
master bathroom to use the Jacuzzi, illustrates a lack of judgment on Montalvo’s
22
part. Additionally, the occurrence of 480 telephone calls during a four-month
period, with over 80 of them taking place after 10:00 p.m., further illustrates
Montalvo’s lack of judgment.
Montalvo’s conduct, as found by the ALJ’s Findings of Fact, exceeds the
bounds of a proper educator–student relationship. The Board relied on those
findings illustrating his conduct to find Montalvo unworthy to instruct.
Ultimately, whether or not improper conduct—beyond the ALJ’s Findings
of Fact—took place is not the issue. Thus, it does not matter whether the content
of the phone calls was romantic in nature. Stated another way, it is immaterial
whether the content of the phone calls implicated a Code of Ethics violation for the
Board to find that the conduct exceeded the bounds of an appropriate student-
teacher relationship and thus at least implicates the standard of “unworthy to
instruct.” Instead, the ultimate issue for the Board is the fact that Montalvo
engaged in these behaviors. That conduct alone demonstrates how Montalvo fails
to meet the expectations of the Board in protecting the welfare of students and
educators.
The legislature has given broad authority to the Board to carry out its
functions. Tex. Educ. Code §§ 21.031(a), .041(b)(1)(7)(8). The Board determined
that Montalvo’s judgment and behavior speaks louder than whether or not specific
standards in the Code of Ethics were violated. Reasonable minds could certainly
23
reach the same conclusion as the Board concerning Montalvo’s judgment. “The
substantial-evidence standard does not require ‘a large or considerable amount of
evidence’—in fact, the evidence may even preponderate against the agency's
finding—but requires only ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion of fact.’” McHaney, 2015 Tex. App.
LEXIS 1903 at *11.
ISSUE IV.
The trial court abused its discretion in issuing a permanent injunction.
The trial court improperly issued a permanent injunction, prohibiting the
Board from treating Montalvo’s educator certificate as having been revoked. See
App. A.
In issuing an injunction, the trial court must look not only at the elements
needed to support issuance, but it must also balance the equities. Triantaphyllis v.
Gamble, 93 S.W.3d 398, 401–02 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied). Because an injunction is an equitable remedy, the equities on both sides
must be taken into account prior to issuance. In re Gamble, 71 S.W.3d 313, 317
(Tex. 2002); Storey v. Cent. Hide & Rendering Co., 226 S.W.2d 615, 618-19 (Tex.
1950). A failure to do so is an abuse of discretion, as here. In re State Bd. for
Educator Certification, 2014 Tex. LEXIS 1208 at *20; Triantaphyllis 93 S.W.3d at
402.
24
As noted above in Justice Guzman’s concurring opinion, the trial court
failed to balance the equities prior to issuing its injunction and disallowing the
Board from superseding its ruling on appeal. See App. H (Trial Court’s Findings
of Fact and Conclusions of Law). Instead, the trial court looked only at the effect
on Montalvo if it did not grant his request for relief, and failed to look at the risk to
schoolchildren in allowing Montalvo to remain an educator pending any appeal by
the Board.
The trial court, in issuing an injunction against the Board without weighing
the equities, has abused its discretion and allowed Montalvo to continue in his role
as an educator, despite being found unworthy to instruct. As a result, the
schoolchildren that the Board has a duty to protect, have been put at risk.
CONCLUSION
The Court should reverse the trial court’s Judgment, including the
injunction, and affirm the Board’s Final Decision and Order revoking Monalvo’s
educator certificate, for the following reasons:
1. The ALJ misinterpreted and misapplied the standard of
“unworthy to instruct” as used in educator parlance;
2. There is substantial evidence in the record supporting the
Board’s finding that Montalvo, due to his judgment and
conduct, is unworthy to instruct;
3. No violations of the Educators’ Code of Ethics or other Board
rules are necessary to support a finding of “unworthy to
instruct;”
25
4. The Board’s changes to the ALJ’s Proposal for Decision
comply with the requirements of the APA, § 2001.058(e)(1),
because the changes were made based on legal reasons
explained in its Final Decision and Order;
5. All changes to the Proposal for Decision are supported by
substantial evidence; and
6. The issuance of a permanent injunction against the Board was
an abuse of discretion.
PRAYER
Appellant, State Board for Educator Certification, respectfully requests that
this Court affirm the Board’s Final Decision and Order in SOAH Docket No. 701–
11–8468.EC in all respects and deny all relief sought by Appellee, Erasmo
Montalvo. Appellant prays for such other and further relief to which it may be
justly entitled.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
DAVID A. TALBOT, JR.
Chief, Administrative Law Division
26
/s/ Ellen M. Sameth
ELLEN M. SAMETH
Assistant Attorney General
Texas State Bar No. 17555550
OFFICE OF THE TEXAS ATTORNEY GENERAL
ADMINISTRATIVE LAW DIVISION
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 936-1838
Facsimile: (512) 457-4608
E-mail: ellen.sameth@texasattorneygeneral.gov
ATTORNEYS FOR STATE BOARD FOR
EDUCATOR CERTIFICATION
CERTIFICATE OF COMPLIANCE
I certify that this Appellant’s Brief submitted complies with Tex. R. App. P.
9 and the word count of this document is 5,796. The word processing software
used to prepare this filing, and calculate the word count of the document, is
Microsoft Word 2010.
Date: April 27, 2015
/s/ Ellen M. Sameth
Ellen M. Sameth
Assistant Attorney General
27
CERTIFICATE OF SERVICE
I hereby certify that on April 27, 2015, a true and correct copy of the
foregoing document was served via the Court’s ECF system to all counsel of
record:
Mark W. Robinett Via: Electronic Service
BRIM, ARNETT, ROBINETT,
CONNERS & MCCORMICK, P.C.
2525 Wallingwood Drive, Bldg. 14
Austin, Texas 78746
mrobinett@brimarnett.com
/s/ Ellen M. Sameth
Ellen M. Sameth
Assistant Attorney General
28
CASE NO. 03- 1 3-00370-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
STATE BOARD FOR EDUCATOR CERTIFICATION ANd
MICHAEL BERRY, TIIE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
CAPACITY ONLY,
Appellant,
V
ERASMO MONTALVO,
Appellee.
On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause
No. D-1-GN-12-00299I; Before the Honorable Tim Sulak
APPELLANTS' BRIEF
APPENDIX A
2
har
ó9
(J ,!
CAUSE NO. D-I-GN-12-002991 +J l'''
(J
LT, : ü>
ERASMO MONTALVO, $ IN THE DIS'|RICT COURT OF rlÕ() :{
,u
Plaintffi $
-í ¿:¡ É
--Õ ^4
$ f) t-'
v $ TRAVIS COUNTY, TEXAS :¡ ir_
4
$
THE STATE BOARD FOR $
EDUCATO R CERTIFICATION, $
Defendant, $ 2OOTH JUDICIAL DISTRICT
JUDGMENT
On the 2l't day of March, 2013, the Court heard the merits of the above-
entitled and numbered cause on the claim ofjudicial review brought by Plaintiff,
Erasmo Montalvo, complaining of the administrative order of Defendant, State
Boarcl for Educator Certification, which was subject to substantial evidence review
on the adrninistrative record. Plaintiffs Original Petition included a request for
injunctive relief, heard on April 25,2013, Plaintiff Erasmo Montalvo appeared in
person and by his attorneys of record, Mark Robinett and Corey Tanner, on both
dates; Defendant State Board for Educator Certifrcation appeared in person and by
its attorney of record, Ellen Sameth, Assistant Attorney General, on both dates.
After considering atl briefs, arguments, the adlninistrative record and
applicable rules and law, the Court finds that Defendant's Final Decision and Order
in SOAH Docket No.70l-ll-8468.8C is not supported by substantial evidence and
is arbitrary and capricious,
IT IS THEREFORE ORDERED that Defendant's Final Decision and Order
is REVERSED,
Page I ofZ
The Court FURTHER FINDS, after considering the evidence adduced and
argument of counsel during the April 25,2013, hearing for injunctive relief, that Plaintiffi
Erasmo Montalvo, is entitled to a permanent injtrnction prohibiting the State Board for
Educator from treating as revoked or revoking the educator certificate of Plaintiff based
on the facts and allegations made the basis of Defendant's complaint in SOAH Docket
No. 701-ll-8468.EC, which injunction is to.remain in effect until, in the case of any
appeal taken by Defendant, a ruling from the appellate cotlrt issues'
IT IS FURTHER ORDERED, pursuant to Rule 2a.2@)(3) of the Texas Rules of
Appellate Procedure, that any appeal taken of this Judgment by Defendant State Board
for Educator Certifrcation will not supersede this Judgment during the pendency of such
*¡ oQo.qoto secure
appeal. Plaintiff is ORDERED to post security in the amount of
the Defendant against any loss or damage caused by the relief granted Plaintiff if an
appellate court determines, on final disposition, that relief was improper.
IT IS FURTHER ORDERED that all taxable costs of court be assessed against the
party who incurred them.
IT IS FURTHER ORDERED that alt remedies not specifically granted are herein
denied.
signed on the 21Ë, * APÉtc 20t3.
ETIMS
Pagc2 ol2
CASE NO. 03-1 3-00370-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
STATE BOARD FOR EDUCATOR CERTIFICATION ANd
MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
CAPAÇITY ONLY,
Appellant,
V
ERASMO MONTALVO,
Appellee.
On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause
No. D-1-GN-12-00299I; Before the Honorable Tim sulak
APPELLANTS' BRIEF
APPENDIX B
soAH DOCKET NO. XXX-XX-XXXX.8C
TEXAS EDUCÂTION AGENCY, $ BEFORE THE STATE OF'FICE
EDUC^'IOR CERTIFICI\TION AND $
STANDARDS DIVISTON, $
Petitioner $
$
V, $ OF
$
ERASMO MONTALVO,.IR., $
Respondent s ADMINISTRATIVE TIEARJNGS
FINAL DECISION A¡{D ORDER
Came on for consideration on the l0rl'clay of Augusl2012 the above-styled matter.
After proper notice was given, the above-styled case was heard by an Administrative Law Judge
who made ancl hled a Proposal for Decision containing Findings of Fact and Conclusions of
Law. This Proposal for Decision was properly served on all parties, who were givcn an
opport¡nity to file exceptions and rcplies as part ol the administrative record.
The State Board for Educator Certification, ("Board" or "SBEC"), after review and consideration
of the Proposal for l)ecision, as well as the exceptions and replies fìled, if any, adopts the
Findings of Fact Nos. I through 33 and Conclusions of Law Nos. I through 6 in the Proposal tbr
Decision, as if fully set out herein. The Board modifies and adopts Conclusions of Law Nos. 7
and 8, as set out below, and aclds Conclusion of Law 9, All proposed Findings of Fact and
Conclusions of Lnw not specifically adopted herein are hereby denied.
Respondent, a rnale coach, engaged in conduct which exceeds the bottnds of the ¡lroper educator-
stulent relarionship during the spring semester of 200tì by iailing to tbllow district protocol and
s,.-nd V.S. ro the trainer for her ongoing iniury, (Findings ot'Fact ll and la); by rttbbing dowrr
ancl/gr nrassaging V.S., (Finrlings of Fact l8 and 20); by treating V.S.'s initrry himself rvith
stretching, ice baths, antl rvhirlpools, (F-inding of Fact l8); by allolving V.S, to use thc Jttcttzz'iin
thc r:rastcr bedroom ot'his homc 'uvhile no one else was present, (Fírrdings of ["act 22 and 23); and
by cngaging in approximately 480 phone calls rvith V.S, during a .l nronth pcriocl, rvith over 80
trf those crrlls being placed atler l0:00 p.nr. lFinding of l?act 26)'
MONTALVO V. SBEC
0067
Conclusion of Law 7l
Basecl on Findings of Fttct ll, 14, 18,20,22,23 and26, Respondent exceeded the bounds of the
proper educator-student relationship and is a person unworthy to ínstruct or supervise the youth
of this state.
Conclusion of Law 8:
SBEC is authorized to take disciplinary action against Respondent's Texas Educator Certificate'
Conclusion of Law 9:
Respondent's educator certificate should be sanctioned'
'l'hese additions and modifications are permissible pursuant to Texas Government Code g
2001.058(e) and are necessary because the Administrative Law Judge failcd to appropriately
'fexReg 5421'22, Marrs v' lufulthews,270
interpret.and apply SBEC policies and rules. See 34
S.W. 586 (1925), l9 Tex. Admin. Code 5 249,15(b)(2)'
protecting the safety and welfare of Texas schoolchildren and school personnel is a primary
purpose of the SBEC. A certified educator holds a unique position of public trust, and
therefore,
the contluct of an edttcator must be held to the highest standard'
The nroral titness of an educator must be deternlined from an examination of all relevant
conduct
and is not limited to conduct that constitutes a criminal violation or results in a criminal
'Ihe rcsponsibility ancl discretion to make this weighty detern'rination is vested in the
conviction.
SBEC.
ÌVIr. Ivfonralvo held a rrusted position ol authoríty that provided him a ttnic¡ue opportttnity to
expl.it vulnerable tèmale athleres. Eclucator.s nrttst clearly understand the hortndaries of the
any violatiott
educator-stt¡dent relationship that they are trustcd not to cross. The SBEC considers
tif that trust to bc cQnduct that may result in permanent revocalion olln educator's certific¿ìte'
i\llorving a f'emale stutlerrt tt: use the iactrz,'t-i in lhe lnaster batltroo¡n ol'his h0llre rvlrile trtl trlre
()\'ur (ì lt¡ur tnonlh pcriod. itnd
else is l)resL.nt. cirlling a strrrlcn( ovcr {81) tinres in the late evcnirrg
MONTALVO V, SBEC
0068
a male corch giv¡ng a t'emale athlete rubdowns and ice baths, tàiling to follorv district protocol to
send an injured athlete to the trainer is conduct that the SBEC consiclers to cross the bounds of
lhe appropriate student-teacher relationship and is sa¡rctionable conduct.
Respondent's uctions crossed the bounds of an appropriate cducator'student relationship anrl
'Iexas educator celificate,
show that he is not presently worthy to hold a
NOW, THEREFORE, lT IS ORDERED by the Board pursuant to the Texas Education Code
Sections Zl.O3l and 2t.041(b)(7) and the Board's rules promulgated in accordance with these
statutes thar Respondent ERASMO MONTALVO, JR.'S Texas Educator Certifrcate Ntrmber
XXX-XX-66-13 is herebY ?o,. '^rrL¡¡ d
On behalf of the State Board l'or Educator Certification:
lo-
L. CAIN, Ed. DATE
Note: Pttrstrctnt to Board order No. 990705DP' issued under I9 Tex. ldmin' code $
249'7(u),
the Boardþr Edtrcalor Certificttlion may sn order on hehuUof
the presiding oflìcer of Sfate 'sign
møking thetìnul decision on q case'
lhe majority of members
MONTALVO V. SBEC
0069
CASE NO. 03- 1 3-00370-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN
STATE BOARD FOR EDUCATOR CERTIFICATION ANd
MICHAEL BERRY, TIü ACTING CHIEF EXECUTIVE OFFICER OF
TI{E STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
CAPACITY ONLY,
Appellant,
v
ERASMO MONTALVO,
Appellee.
On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause
No. D-1-GN-12-002991; Before the Honorable Tim Sulak
APPELLANTS' BRIEF
APPENDIX C
O- *l v
En
Ã$
_9
o
ciã
el- :È.1 ño ií
CAUSE NO. D-1-cN-12.002991 ()
''r= >\
-rl
ñ¡l =
UD
LJo
= æl
\,¡ =NÐ
ERASMO MONTALVO, IN TTIE DISTRICT COURT o¡O I :)
Plaintiff
$
Ë,s æ, I
U'
$
:Et úõo
$ EF
0)F ó
v TRAVIS COIJNTY, TEXAS I
$ u i E
$
THE STATE BOARD FOR $
EDUCATOR CERTIFICATION AND $
MCHAEL BERRY, THE ACTING $
CHIEF OF THE STATE BOARD FOR $
EDUCATOR CERTIFICATION, IN $
HIS OFFICIAL CAPAC]TY ONLY $ 2OOTH ruDICIAL DISTRICT
AGREEI' ORDER DISMISSING MICHAEL BERRY
on this &uv of HÀ,4CH ,zot3, the Court considered the Agreed
Order Dismissing Míohael Berry as a Defendant in the instant cause, Afrer reviewing the
pleadings and this Agreed Order, jointly fíled by counsel for Plaintiff and Defendants, thc
Court is of the opinion that the Agreed Order Dísmissing Michael Berry should be
granted and that Michael Berry, The Aoting Chief of the State Board for Educator
Certification, In his Off¡cial Capacity Only, should be dismissed from this lawsuit. The
Court finds that Michacl Berry ís not the Chief of the State Board for Educator
Certification, and that the only proper defendant to this lawsuit is the State Board for
Educator Certi ficati on,
IT IS THEREFORE ORDERED that Michael Berry, The Acting Chief of the State
Board for Educator Certification, In his Official Capacity Only ís hereby DISMISSED as
a Defendant with prejudice to re-filing same.
C/N D-l -CN- l2-002991 ; Montalvo v SBEC and Mtchael Berry
Page I o/2
SIGNED on the &uro¡ M AÈc Èl- .20-É
Tì SU
'.1.
AGREED AS TO FORM AND SUBSTANCE:
EllenM. Sameth Mark W. Robinett
State Bar No. 17555550 state Bæ No. 17083600
OTrICE OF THE AI.TORNEY GENERAL BRIMM, ARNETT, ROBINETT
AovIuISrR¡TIVE LAW DIvISION CONNERS & MCCORMICK, P.C.
P.O. Box 12548 2525 Wallingwood Drive, Bldg. 14
Austin, Texas 78'l ll'2548 Austin, Texas 78746
Telephone; (5 I 2) 936- t 83 I Telephone: (5 12) 328'0048
Faosimiler (512) 320'0167 Facsimile: (5 I 2) 328'48 14
E-mail: Ellen.Sameth@.oag.statc,fx.us E-mail: mrobinett@brimarnett,com
ATTORNEY NOR DETENDANTS ATIOR¡IEV FOR PLAINTIFP
C/N D- I -GN- t 2-00299 I ; Montalvo v SBEC ond Mlchael Berry
Poge 2 ol2
CASE NO. 03- 1 3-00370-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTTN
STATE BOARD FOR EDUCATOR CERTIFICATION ANd
MICHAEL BERRY, TIIE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
CAPACITY ONLY,
Appellant,
V
ERASMO MONTALVO,
Appellee.
On Appeal from the 200th Judicial District Court of Travis County, Texas; Cause
- No. D-l-GN- 12-002991; Before the Honorable Tim sulak
APPELLANTS' BRIEF
APPENDIX D
SOAH DOCKET NO. 701.1 I-8468.8C
TEXÄS EDUCATION AGENCY $ BEFORE THE STATD OFFICD
DDUCATOR CERTIFICATION AND $
SÎANDARDS DIVISION, $
' Petitioner $
$ or
v $
$
ERASMO MONTALVO, JR., $
Respondettt $ ADMINISTRATIVE HEARINGS
TABI,E OF CONTENTS
I. JURISDICTION, NOTICE, AND PROCEDLJRAL IIISTORI þiiârìü¡r¡)rïr¡r,¡f¡i,?,qr'¡r:,.¡.,'?'r, I
A. Undisputed Background Fac1s,..,....... ,..,.,,,,.,....2
B. The AIlegAtiOnSír)t¡Ìii.ì¡ri..iËt ¡r¡tí'.ir1jii¡aaia¡i¿ir¡¡ih;ir.ii..¡¡¡ir'.¡lïi.aiì¡¡i¡ôli¡¡ir.ïr¡är!:a¡ir¡Ì¡¡iìt"ii¡:iris¡r.3
1. Allegations Set X'orth in StafPs Pleacling..... .............'.3
2. Unpled M¿tters..,.., ,,,,,,,,,',,,,,,4
l.
.,
Statements by V.S. (Student 1) 8
V.S.'s Testimony,. .......' 8
^,
b. V.S-ts Statenrent at thc Child Advocacy Ccnter¡,.-.;-; j.ri.,.¿r.1ai,i.i.,4..>¡;it*ó. 14
3. Testimony t¡f Erasmo Mr¡ntalvo ..,,.'..... 16
4. Telephone Records...... ..................... .....,20
5. Testimony of Other
'Witnesses ..""".".'.' 21
a. .Student I's Parents 21
b. Diana Garzn-Louis, LPC......., ....,.24
c. Rio Grande City CISD Teachers nnd Colches.....................-...'.............26
d. Rio Grandc CirJ* IIS Students and Itarents ¡;¡ìjìi¡';..¡'¡,r.1ir.,¿.;iz'¡,'t,,.¿,',,,;.,..34
MONTALVO V. SBEC
0008
TAtsLE OF CONTENTS I'AGE 2
soAH DOCKET NO. XXX-XX-XXXX.8C
1. \ilitness Credibility """"""' 43
Sexual Impropricty and Assault
45
2, """"""
3, Telling V.S. Not to Go to the Trainer """""""""""' 48
4, Telephoue Cat1s..........' """' 50
5. Student IIse of Mr. Montalvo's Jacuzzi'.'..'.,"""""' -;'*--"""""' 52
6. Sunrmary and Resomnrendttiorr """""'52
MONTALVO V. SBEC
0009
SOAH DOCKDT NO. 70I-1I-8468.8C
TEXAS EDUCATION ÄGENCY $ BEFORE THD STATE OÍ'FICD
EDUCATOR CERTIIÍICATION ANI) $
STANDARDS DIVISION, $
Petitioner $
$ OF
Vi, s
$
ERASMO IVIONTALVO, JR., $
Respondent $ ADMI NI STRATIVTi, HEARINGS
PROPOSAL FOR DECISION
The staff (SIr¡fÐ of the Texas Education Agency, Educator Certification and Søndard-s
Division (TEA), on behalf of the State Boa¡d for Educator Certification (SBEC or the Board),
brought this {isciplirìary action against Erasmo Montalvo, Jr,, to permanently revoke his Texas
Educator Certificate.r Staff âlleges that Rcspondent engagcd in sexual contact r'vith a fcmale
high school student and otherwise treated her in a neglectful or harmful filanner' The
Actministrative Law Juclge (ALJ) fìrrds tbe eviclence fails to prepottderate ìn suppott of StafPs
allegations. 'fhe AL,J recommends that no sanction be assessed against Mr. Montalvo.
I. JURISDICTION, NOTICE, AND PROCEDUR.AL HISTORY
of notjce or jurisdiction are acldressed in the findings of fact. Issues
General issues
concerning the scope of the case, as determinecl by the pleaclings, are discussed below in
connection witli Staff s allegatiorrs'
The hearing was held January g-12, 2012, before ALJ Shannon Kilgore at the State
Officc of Administrative I'Iearings (SOAIÐ in the'Williarn P. Clements Brrilding,300 West l5rr'
Street, pourth Floor, Austin, Texas. Staff was represented by atforneys Richard J. Ybarra
and
lr4erle Hoffnlan Dover, Mr. Montah,o appeared ancl was represented by attorneys lr4ark Robinett
'lex. Educ. Code $ 21,015.
' TEA is authorizeii fo prot,ide adrninistrative fonctions and scr.liccs to SBEC.
MONTALVO V. SBEC
001 0
soÄH DocKIlT NO, 701-ll-8468.8C PROPOSAL FOR DECISION PAGE,2
and CoÌey Tanner. The recorcl closed on lvlarch 9,2012, with the parties' submission of reply
briefs,'?
II. DISCUSSION
A. Llndisputed Background fiacts
Mr, Montalvo holds a Texas Educator Certificate issued by the Board. In the spring of
2008, Mr.lr4ontalvo was a track and field coach at the Rio Grande City High School
(Rio (hande City I-IS), part of the Rio Grande City Consolidated Independent School District
(Rio Grande City CISD). He was also the physical education coach at a CISD elementary
school,
$tudent I (also r.feo"A to as "V.S."),3 afemale seniorunder the age of 18, was on the
hìgh school tlack team coached by Mr. Montalvo. Dulirrg the 2008 ûack season, she suffered a
ha¡rstri¡g injur.y. Student 1 received a track and field scho)arship to attend college in
Corpus Clristi the following year, She graduated from high school in May 2008 and lefl for
college that August.
Ar some point during the 2008-2009 academic year, V.S. told a c.ounselor at her college
and her family that tvlr. Montalvo had sexually assaulted her in the spring of 2008, In 2009,
Mr.Montalvo was chargecl with trvo counts of secottd-degtee'felony improper relationship
between educator and student. He was indicted in October 2009, and acquitted of both counts
following a jury trial.'l
2 The parties' blieîs included proposed findilgs offact and conclusions of !aw, Proposed 1-rndings offäct
an¿ conr:lusi¡rns of law not spe(:ifirally adopted in this proposal for clecision (PFD) are ovenuled.
3
This srudort was rcl'crcd to i¡ Staft's pfeadings as "Súudent l" ìrul in the henring mostly as "\'.S." The
AL-,| therefo¡e uscs boih rnethods of referring to the sludent.
4 Rcspondcnt's Exhibits l-3.
MONTALVO V. SBEC
001 I
soAH DOCKET NO. XXX-XX-XXXX.8C PROPOSAL FOR DECISION PAGE 3
R. The Allegations
L, Allegations Sct X'orth in StafPs Pleading
Tlre primary altegation of Slaffs Original Petition is that, in the spring of 2008,
lvfr. Montalrro engaged in unwarrted sexual contact with Stude¡lt I ort a number of occasions,
StafPs specific aJlegafiorrs of sekual inrpropriet¡' are as follows:5
a Res¡rondent [nrassaged] Stuclent I's leglhamstring area and would move farther
and farther up her leg as he massaged her. Ultimately, Respondent's touchíng
became inappropriate, moving up into Student I's genital area,
a Stuclent 1, along with other 1'emale students on the girls' track team, would go to
Respondent's home to soali jn his "hot tub," wbich was actually a Jacuzzi-style
batlrtub in the master bedroom of his home. On one of these occasions when
Student I was alone with Respondent in his home, in or arouncl April 2008,
Respondent invited Student I to use his "hot tub." He then asked her to lie on his
bed so thal he could nrassage her leg. At that time, Respondent then proceeded to
engage in oral sex witlr Student L
a Subsequently, Respondent ÈnBaged in sexual telations witb Student I on school
property in the Field House.
a Continuing on through the spring semester of 2008, Respondent would engage in
inappropriate touching of Student l, sometimes occttrring on school propefly,
Staff asserts tbat Mr. Montalvo told V.S. that if she lold the athletic trainer she was
injured, the. trainer would not let her run in the district and regional track meets, Furthet, Staff
alleges that, during the spring of 2008, Mr. Montalvo engaged in approxjrnately 480 phone calls
witb Studeot l, with over B0 of the calls placed after l0:0(l p.m.
lvfr. Montalvo denies all allegations ol'sexual nrisconduct. He denies any assertion that
he told V..S, not to go to the trainer. He admits lhat there were plrone calls with Student l, but
assefls that he does not know the numbel of calls. He' cie¡ic.s tlut the calls were inappropriate,d
r 'l'hc allcgations are taken 6'om Steff's Original Petition at 2"5, as amended through an unopposed oral
rnotion at thc hearing. I 'I'r. at 4-5.
6 Monlalvo's .Answer at 2,
N,lr.
MONTALVO V. SBEC
0012
soAH DOCI(E',t' NO. 701 -lr-8468.8C PROPOSAL FOR DECISION PAGE 4
2. Unpled Matters
In iis opening sratementT and closing zugnrnenls. Staffhas made amunber of additional
assertions, including that Mr. \4ontalvo: gave V,S, rides home; rubbed down and massagcd
female athletes, inclucling V.S,; stretched female athletes in a way that looked inappropriate;
allowed female athletes, including V,S., to take ice baths in the field house without a I'emale
coach present to supervise; was alone with female athletes, including V.S., in a hotel room; gave
female athletes, including V.S., gifts; lailed to refer V.S. for counseliug in conuection v"ith ber
suicidal thoughts; slappecl girls on tleir backsides; and took V.S, to be massaged by a female
coach who rvas not licensed or certified to give mâssages.8 Staff specificalty argues that manyïf
these assertions constitute bases for sanction,e
There are no factual allegations in Staff s pleadinglo to support any of these contentions,
rühile there are mùty factual assertions in Staffls pleading, there is uo mention of rides home,
stretching of female athletes, ice baùs, being alone with female athletes, gifts, handling of an
athlete with suicidal thorrght.s, Slapping of backsides, or a massage by an uncertified female
coach. As to massages, Staff s pleadirig alleges that Respondent massaged V'S. imrnediately
after ¡.er hamstring injury, that a massage on a later date became sexual, and that he told V-S.
that he needed to continue to massage her due to her injury.ll However, there is no allegation
that Mr. Montalvo should not have been engaged in non-sexual massages or rub dow¡rs of female
athletes, as Staff argues.
At hearin-r, Søff orally amended the. factual assertions in its pleading, but did ttot move
to include factual allegations going to arry of the matters describecl above, In his reply brief.
.Mr.lvlontalvo objected to Staft's going beyond the confines of itspleading'¡z The objection is
, ,,(L-.. .;¡,. - t.
,
1 Tr, at 19.
* Peticioner's Clo.sing Argtrtnent a¡' 62o.
e Petitioner's Closing Ârgumcot at 20.
r0 Stafl--s Original Petition, as orally anrerrded at hearing.
rr Stafls Originaì Petition at 3-4,
r2 Respontlent's Post-l'leaLing repìy Brief at 7'
MONTALVO V. SBEC
001 3
PROPOSAL FOR DECISION PAGE 5
soAH DoCKU',l' No. ?0I -l l-8468.I1C
sustained; those matters zrrenot considered as possibl" ina.p"ndent bases tbr sanction.l3
Holvever, the ALJ does consider the svidence relevant to those lnatters in light of whether it
supports the allegations actually plècl by Søff-
C. Applicable Legal Standards
SBÉC may take disciplinary action against an educator who is unrt'ofthy to inslruct or
supervise lhe youth of this state or u'ho has violaæd olÌe or more provisíons of the
Eduoatots'
youth
Code of Ethics,r{ In this case, Staff conten<ls that Mr. Montalvo is unworthy to supervise
and that he violated the following provisions of the Code of Ethics: (l) Standard 3.2,t5 by
knowìngly treating a stuclent in a manner that adversely affeots the student's learning, physical
¡ealth, nrental healtlr, or safety; (2) Standarcl 3,5,10 by intentionally, knowingly, or recklessly
engaging in physical mistreatment, neglect, or abuse of a .student or minor; and (3) Standard
3,6,t7 by soliciti¡g or engaging in sexual conduct or a romantic relationship with a student.rB
t3 The ALJ has co¡sicìered ttre possibility that these nlâtters 1ry€re tried by consent. See-Tex,.R'. Civ' P' 67
the
(,When iszues not raised by orintplied , they sball be treated
ìr, uti ."rp."o as be
if t¡ey hãd Theywere tement' attd evidence
,rlruuna ïo them ,na, qdmitted r, evidence was also potentially
irìru*r as background and context for ivfr, Montatvo's allcgedly sexual conduct with V,S. Furthermore,
to mattcrs as independenr bases for sanction, due to the fact
Mr, Monøluo ob¡ã.t.d in his closing argument these
colnsettr is a nar:orv doctrine, applicable in exceptional cases, and where 'such
an
lhut gruy *ere nó¡ pled. Trial Uy
'
raise
ob.iectiorr is LLC v. T&IvI Sales & Envtl' Sys" ì76
S.W.3d 595, 605 ining party does not object to teslirnony
but
ã'n rlre irsuó ble ground, 'be cannot be rcgardetl as
impliedly con.sen internal citations omitted)' In this case,
therefore, tlle matters were not tried by consent.
to lg'fex. Admin. Code $ 24g.15þ)e), (3). The relevant provísions of the conbolling rules have not
changed in substance sjnce lhe tinle of the events at issue in thjs case'
r' l9'I'ex. Admirr, Code $ 24?'2(bX3XB) lnow $ 247'2(3XB)]'
'u l9 T"*. Admin. Code $ 247.2(bXlXÐ lnow $ 247'2(3XE)]'
'? l9 Tex, Aclmin. Çodc $ 24?.2(bX3)(F) luorv S 247'2(3XF)]'
tt staff alteges, too, that Mr lvfontalvo violated Codo of Ethics Standard 1.7, 19 Tex' Admin' Code
247.2(lXG)], by failing to rvritten local school boa¡d
$ 24?.2(bXlXG) [now $
policies, and other appticable state and federal [aws' ily in its pleading lvhat
allegedly violated.
written policies or laws, aside from olhet'provisions
Staff flirther. alleges Mr. Montalvo "has comrnitted an act describcd in 19 f'r\C ['l'ex. Admin,
Codel
to healtl, sateîy, ot' rvelläre of a sludcnt or rninor, porent of a
conduct tlrit inclicates a risk the
(h)) establishes
ernplo¡ree or proltssional colleague." Tle cited rule (which is now subseclion
but irnposesio obìigalions o0 teachers, callnol be violaled by a teacher, and
EA,s investigaiions,
is for sanction ofa leacher.
MONTALVO V. SBEC
0014
soAH DOCKET NO. 701-11"8468.8C PROPOSAL FOR DECISION PAGE 6
The forms of disciplinary action SBEC may take against an eclucator include placing
restrictions or condìtions on an educator's certificate, issuing an ins<lribed or uninscribed
leprimand, suspending a certificate, ìssuirrg a probated suspension, and revoking a ccrtilìcats.re
SBEC and the ALJ are required to take the following factors into consideration in seeking,
proposing, or makìng a decision in enforcemsnt actions:
r Tlre serior¡sness of tbe violation;
. Whether tl¡e misconduct lvas premeditated or intentional;
¡ Attcmpted concealment ofmisconduct;
r Prior misconduct;
. Whether the sanction will deter future violations; and
. A¡y other relevant circumstances or facts,zo
If Staff proves that an educator engaged iu or solicited sexual contact or a romantic
relationship with a student (tlrereby violating Standarcl 3,6 of the Eclucators' Code of Bthics), the
2|
educator' s certifìcate mus t' be permanently revoked.
D. Sumrnary of the Evidence
1. Overvierv
Statïotlèred the testimony of the follorving witnessesi,
a Student l;
o Yolanda Sanchez, Student 1's mother;
a Salome Sanchez, Student I's father;
a Rey Ramirez, the Rio Graude Citi CISD Athletic Director;
a Esther Guera Pena, a formcr coach rvith thc Rio Glande City CISD;
a James Meguire, the head athletic trainer at the Rio Grande City IIS;
a lvlr. Montalvo, called as alr adverse wittress;
re I I Tex, ,{dmin, Code
$ 249.1 5(a).
-'a
lg Tex. Adrnir. Code $ 249.1 7(c).
2' l9 Tex. Admin. Code $ 2a9.17(dXl).
MONTALVO V. SBEC
001 5
soAH DOCK-ET NO. 701-l1"8468.8C PROPOSAL FOR DECISTON I,ACE 7
t Diana Gzuza-Louis, a ljcensed professional counselo¡ who provided experl
teslimony about sexual abuse;
a Ilicarclo an employee of the Rio Crande City CISD wþo worked
Altahil
with Mr. Montalvo during the time period in question; atrd
f: Roel Gonzalez, the superintendent of schools fbr the Rio Grande
City CISD.
St¿ff s other evidence includes, arnong other things, telephone recorcls of
Mr. Montalvo,22 a DVD and transcript of an interview of V.S. at the Child Advocacy Center,23
and copies of greeting cards with handwrittcn notes from Mr. lvlontalvo to V,S,2a
Mr, Montalvo testified on his own behalf and offered the testimony of the following other
witnessesl
a K.r\., a student athlete who rvas coached by Mr. Montalvo and was a
teammate of Student l;
a Dina Pena, a parent whose daughters were student athletes coached by
Mr. Montalvo and who ì¡/ere teâmmates of Student l;
o Lincla Lu, an assistant track coach at Rio Grande City I{S at the time of the
events in question in this case;
a E.P,, a student athlete tvho was coached by Mr' Montalvo and was a
teamrnate of Student l:
4.G., a stuclent athlete who rvas coached by Mr. Montalvo and was a
teammate of Student [;
a Ricardo Saenz, the principal of North Grammar Elementilty School in the
Rio Gra¡rde City CISD, wlrere Mr. lvfonlalvo also coaches;
a Baldemar Garza. an attonrelr who advised Mr, Montalvo in his criminal
case a¡d who is the father of a young male track athlete who gradnated
from Rio Grande City I-IS ancl was trailed by lv{r. Montalvo;
22
Sra|| s Lixhibirs 2,2A, and i,
2t Staffs Exhibi¡s 4 and 44.
2a
sraft's Exhibit 5,
MONTALVO V. SBEC
001 6
PROPOSAL FOR DECISION PAGE 8
soAtl DocI(ET NO. 701-tl-8468.8C
I(.T., a student athlete who was coached by Mr. Montalvo and tva.s a
teammate of Student l;
o Ofelia Guerra, an elementary school teacher with the Rio Grirnde City
CISD who has worked wjth Mr, Montalvo;
a Catherine Rubio, who is employed at North Grammar Elementary School
and knows Mr. Montalvo;
o K.S., who is the daughter of Ricardo Saenz and rvho is presently a stuclent
track athlete at Rio Grande City HS coached by Mr' Montalvo; and
o 4.8,, a student track athlete at Rio Grande City HS prescntly coached by
Mr. Montalvo.
Mr. Montalvo's other evidence includes, among othet things, tecords reflecting lús
criminal acquittal and his telephone calls, multiple rvritten statements from witnesses in this
cas",25 a televisíon interview of Mr. Montalvo and V,S., and police records concerning the
alleged sexr¡al assault.
2, Statements by V.S. (Student 1)
¿r. V.S.'s TestinronY...
Student I graduated from Rio Grande City HS in the spring of 2008. She went on to
college at Corpus Christi A & M. She is plesently still in school, is matried, and has oue cbild'
V,S. testihed that she first met Mr, Montalvo when she was in the eighth grade and she
parlicipated in a surn.me¡ track program he coached. Begiming as a freslrman, slte ran track
throughout high school, and lvlr, Montalvo wa.s her coach. V,S.'s goals were to participate
in the
Olympics ancl obtain a college scholarship.2ó
When she first started running, V.S. said, she had been diagnosed with a heart mtìlmtlr
ancl leaking heart valve. Her doctor told her not to run because, if her heart began to
pump very
?5
ftc.-spondcnt's Exhibit 16, a writtcn stâtsmont of Erika Prart, was inadvertently admitted at the hearing.
h
is hcrcby exclnded based on a proper objection by Stnft
16 'fr. at 3 l -39
MONTALVO V. SBEC
0017
soAH DOCKET NO. 70r-11-8468.8C PROPO.SÄL FOR DECISIOÌ\ PAGE 9
fast, she could have seizu'es. She stated that lvlr, Montah,o aclvisecl V.S,'s pat'ents that she
s¡ould not run track. However, V.S. testified, "l tolcl them if I was going to clie, that I would die
*i rvould rather die at the track than anywheie else, so I wæ going to conlinue running
regardless." She said that her condition has improved.2T
Accordipg to V.S,, in her junior year, she progressed 10 the district and then the regional
competitions.2s That year only one student from Rio Grande City HS went to the state
competition, A,G. V.S. stated that she and trvo other girls traveled to Austin rvith A'G,, at
Ml, Montalvo's invitation, to ot'fet suppott during the state meet, While in Austin, said V'S',
Mr. tvlontalvo asked each girl to come into his hotel room fbr about 20 minutes, during which
time he gave each girt jewelry made by one of his re'latives'2e
In her senior year, Student 1 said, she was trying to gain a college scholarslrip through her
parlicipation in track. The track season began in February and culminated in the state rúeet in
May, and t¡e college scouts rvere watching seniors rryho r,vere. competing' V,'S. and her parents
looked to Mr. Montalvo to help them with the scholarship application process' Mr' Montalvo
communicated with V,S,'s f'amily frequently. No one in'V'S,'s family had ever gone to
college,3o
On March t of V,S.'s senior year, ala meet in Oo*q \¡,S. suflèred a hamstring injury.
A college scout $'as present to watoh her cornpele, According to V'S., the injury rnade it
clifficult for her to walk, She testified that lr4r. lvfontah,o went with her to the school bus, where
he massagecl her leg in a:r effori to get her to a point at u'llich she could compete. Coach Lu
nrassaged her, too. V.S, testilied that nothirrg inappropriate happened at that time. I)espite the
rub downs, she was unabìe to conrpete. She also stated that the college scout talked to her that
day ancloffered her a scholarship, despite her iujury. She ar.:oeptccl the scholarship.3r
2'- 'l't. at33-34.
28 'fr. at 41.
2" Tr. at 42-44.
)o Tr. at 45-47.
t' Tr, at 47-50,138.
MONTALVO V. SBEC
001 I
PROPOSAL FOR DECISION PAGE IO
soAH DOCKET NO, 701-t l-84ó8'EC
refer her to a
student rvenr on to say that, following her injury. Mr, lr4ontalvo did not
I
compeling at the distict meet' arid that
trainer, telling her that lhe trainer would prevent her from
jeopal'dy' She said she did rrot see a doctor'
her failure to cotnpete might put her scholarstrip in
for shots to treat the iojuty' V'S' began
but her mother look her to Mexjco once or twice a rveek
using massages, a heating pad, and ice baths for her injury,
which initially prevenÈetl her from
running, workirrg oÙt like the other girls, of eveD picking up
her leg' She søted that
M¡. Morrtalvo would perform massâges himself, in a field house that had mats and air
conclitioning,l2 :,
According to V,S., the massages became sexual' she slated that
Mr' Montalvo would
dnkle to her back, incìuding her buttocks'
massage her leg (al1d soDretimes lroth legs) fronr t]re
said the massages would occur before
She testified that he would also rub her vagina. She
happenecl in various
practice, after practice, ancl a few times befote school, and that they
sþe stated' lMhen he woulcl start
locatious. The offensive touching did not happen all the time,
him to stop, but he would say that he needed
to touch her in an inappropriate way, she would telt
to massage the eutire area, and any straying vvas inadvertenl' Nonetheless, she sAid' he kept
to get better so that
doing she stated that she kept allorving the massages because she wanted
it.
rominding her of that
her scholarshìp would not be in jeopardy, and Mt'. Montalvo lcept
V.S. missed the next
possibility, She could not afford to go to college without a scholarship''3
meet in early April'3a
three meets clue to her injury, next cornpeti$g at the district
At v's., Mr. Montalvo offered
some point after the massages had become sexual, said
her some rnoney, She testified that, at the tinre, her parents were
sÍuggli¡g financíally'
just been
Mr, Montalvo, of this fact, told her that he had 52,000 with him, because he had
awar.e
plovide the money "if you do
paid, a:rd he oould give it to her. V.S. stated he tolcl her he could
fol'me." She saicl that she {eclinecl, saying her parents would be fine'
V'S' inferrcd
.somcthing
the child Advocacy center that he
that he was conditionìng the offer of money on sex, and told
V'S' received, or rvho administered lhem'
='' Tr. ar 5l-54,62,140, lt is unclear exactly what kind of shots
ltere are rplèrences in lhc cviclcncc ttl vitamin lf-12 shots'
rr Tr. at 54-59,64,87-
" Tr. ot 60; Respondent's Exhibit 22'
MONTALVO V. SBEC
001 9
soArI Docr(nT No, 70t-Il.-8468,8C PROPOSAL }'OR DECISION PAGE II
hacl ot1ered money for sex. V,S. acknowledged that, in her testimony in lvft' Montalvo's
just suck
criminal trial, she testified that he had told her, "We don't have to have sex. You can
oil it."35
V.S. asserls that, in about Aplil, Mr, Montalvo raped her twice. Tho first time, slte said,
was ìl the field houqe. She testified that lhe two occuffences were within clays of each odler,
some time prior to lhe regional meet (vrhich was in late April). One clay afte'r practice, Student I
stated, when everyone else bacl lefl, Mr, Montalvo gave her a massage on a ¡nat in the fielcl
hor¡se, In the course of the massage, she said, he moved her "bikers" shorls to the side and
placed his penis inside her vagina. V.S. stated that she had allorvecl him to give her a massâge
because she wanted to get better an{ compete, and because of the scholarship'36
The second alleged ocsurrence was at Mr. lvfontalvo's home. During her senior year,
V.S. statecl, she used the ho[ tub or Jacuzzi in lvft. Montalvo's bathroom at his home th,ree times'
She said that track girls did not use the hot tubs at the school, and they went to Mr' Montalvo's
house because of the $,ater pressure. On the fust occasion, she went with three othef girls' This
was, V.S. said, the only time she saw Mr. Montalvo's wife present, The second time, one other
girl accornpaniecl V.S. The batlt accommodated two people, and the girls each used the bath for
20 minutes. They wore sports bras or bathing suit tops, and "bikers" shorts. V.S. said that, on
the third occasion, she lvent alone.37
When she got out of the Jacuzzi, V.S. testified, Mr. lvfontalvo asked her to take otïhe¡
bíkers so that he could give her a massage. She wore a bathing suit rmderneath. He put a torvel
on the bed, zurcl s¡e lay {owl on it on her belly, According to V.S., he undid her bathiag suit af
the baok and massaged her whole body, saying that all the muscles are connected. Then- she
saicl, he asked her to turn over, bnt he dicl not re-do her bathing .sttit, so she held it over
hcr as she
[rned ovcr. Slie statecl fhat he louched her breasts and kissed her body, Inoving her panties
" Tr. at 106-l08, 144,117"
to Tr, at 84-91,149-150.
3? I'r. at 65-?0.
MONTALVO V. SBEC
0020
PROPOSAL FOR DECISION PACÈ I2
soAI.I DOCKET NO, 701-I l-8468.8C
aside and kissiug ¡er vagirra. She said that she told bim to stop, but he raped her. ,'lhis was, said
V,S., the second rape. z\ftenvard, she stated, she grabbed her things and ran out to her car'18
After these events, said Student 1, she began to have suicidal thoughts. She stated she
had not experienced any suicidal icleation prior to her sexual assault,-te She specifically
denied
" talkiug on the telephone to Mr. Montalvo about thoughts of suicicle'ao
V.S, compete¿ in the regional me.et held in late April in San Antonio, brrt did not qualify
for the state meet to be held in May in Austin. She testifred that Conch Montalvo massaged her
inappropriately at the hotel at regionals, but that, afler regionals, did not give her any more
massages. Although she was not eligible to compete at the state meet, she traveled to Austin
*8"4f also went on the tríp, According rc V,S',
with stuclent K.T,, who did qualify. Stuclent
Mr. Montalvo called the girls in one by one for about 10 or 15 minutes each, and he gave each
a
little present.42 V.S. said that he told her he would visit her the following year in Corpus Ckisti,
and he would make up a story so that his wife would think he had gone hu¡ting.a3
V.S. testified about telcphone calls with Mr. Montalvo in the spring of 2008. She said
that he would ofìen call her. She rvould also call him because, if she did not, he would call
her.
The calls occurred at night, following practice, sometimes very late, Some calls were long'
Student I stated that they woulcl disouss track ancl her upcoming race's, how she needed to
visualize a race irr her hcad to make it easier, and her scholarship, Thc number of calls went up
quite a bit following her hamstring i¡jury. She indicated tlrat the calls rvere not sexual in nature,
except that lvfr. lvfontalvo,rvould talk about his problems rvith his rvife, and how they ditl not
¡ave sex. V.S, also said Mr. Morúalvo would "tell evct'yone" about his nrarital problems. She
said that most of the conversations were just him talking, and he often repeated himself'
There
rs Tr. at 70-?8.
]e Tr. al 126,
40
Tr. at 850,
,' The ALJ surmises this rvas student E.P., who was a witness in lhis casc,
a2 At anorher poinr in her testimony, Student ! s¡icl thot Mr. Montalvo talked to her for longcr than he did
to the other girls. Tr. at 130.
n' Tr. at91-95, 153-154,
MONTALVO V, SBEC
0021
soAH DOCKET NO. 701-1!-846E.8C PROI'OSAL FOR DECISION PI\GE 13
was nothing, she statcd, that he told hcr on the phone that he could not have told her during the
d"y.'o
V.S. complainecl that Mr. Montalvo stretched girls in inappropriate ways. She described
Jeg stretches in rvhich Mr, Montalvo was close to the girls' bodies. She saicl that the stretching
occunetl out in the tfelcl.as V,S. also stated that Mr, lv[ontalvo would snrack girls on thc bult.a6
V.S.'s parents trustecl ancl ad¡nired Mr. Monølvo, statecl V.S, He assisted with the
scholarship, he sometimes visitcd V.S.'s home, and he once cÍtme to the house to show V,S.'s
parentsllow to rub dorvn her injured area. In mid-May, when there had been some difficulty
with getting the proper amount of financial aid, Mr. Montalvo l\'ent to Corpug Christi with V-S.
and her mother to iron out the problem, V.S. stated that she did not want him to go, and told her
mother so, but her parents trusted Mr. Montalvo so much that they insisted he go.a7
Tbro¿ghout the spring, said V.S., she did not tell anyone about the assaults. She stated
that she r.vas afiaid to tell her parents beiause her father has a very bad temper. She also wanted
to oom.pete, and she rvas afraitl others rvould not believe her, because Mr' Montalvo had a rvay of
manipulating everyone into thinking that everything he did was okay, Sbe did not want to be
around him, but she felt she hacl to act like nothing was going on. She laughed and talked around
him, including r.vhen they were being filmed for a local telet'ision nervs story about her
a8
sclrolarship.
In the summer of 2008, V,S. testified, she began to voice her accusations. She stated that,
in Jnnc, she told her mother that Mr. lv{ontalvo had touched her, Stuclent I said that she told her
mother in English, and her mother did not really understand what she had said' Her mother
calle<l he.r father, wlro canre home ancl bccame so angry that V,S. did not want to otl'er more
4{ Tr. at 95-101,169-170.
'¡i Tr., at ?g-83,
ú T¡.. ai lj1-136. V,S, made simjlar s¡atements in the Child Advocacy Côlrter interview' Exhibit 4
at 8-10,
a"
Tr, at J06. 108-l 10, 136.
n 'fr. '79, 105, 134, 154-151 .
at
MONTALVO V. SBEC
o022
PROPOSAL FOR DECISION PAGE 14
soAH DOCKDT NO. 701-ll-8468.DC
details, Her father got a gun and saicl that he was gòing to kill lr4r, Montalvo, She did not tell
him rnore because her father hacl been in jail before, and she did not want him to do sornething
a¡d have to go back. And, she did nol. want to tell anyone else because she knew slie would be'
t¡e subject of gossip. She did call Mr. Montalvo, she stated, and told him that she had told hcr
parents what had happened, and not to bother her anymore. After that, she indicated, he ne'ver
called her again. Then, after she tvent to college, V,S. discussed these tnatters with a couttselor,
who reporred them to the authorities because V,S, had been underage in the spring of 2008'
Now, V.S, said, people whisper about her rvhen she is out in public in Rio Graude City.ae
V.S, acknowledged that, in the fall of 2009, she returned home and allended a track meet
at which she had contact with Mr. Mlntalvo, She denied requesting to ride on the bus rvith
the
teanr.5o
V,S- also acknowledged that, following the events in this case, she made a false outcry to
the police that she had been kirlnappecl. Sbe testífiecl that sbe dicl so because she wanted
someone to stay with [er, and not leave he¡ alone, and she wanted that person's attention.
She
.,That,s what I had to do to have somebody in the apafiment rvith me."5l Student 1 further
stated,
admitfed to lyi¡g on Facebook about being pregnant i¡r orcler to get her boyfrieud'to stay rvíth her
in an apartment because she does not like being alone'sz'
b, V.S.'s Statemeút at the Chikl Advocacy Center
Student I was ìnterviewed by a rvorker at the Child Advocacy Center in Rio Grande City
on May 28,2009.53 In the interview, V.S. tleseribed evènts in the spring of 2008, This surnmary
ae
Tr. at I l0-l I 5.
ro Tl'. at 157-159,
Jr Tr. at 124-125, She did nor iclentity wh.ose atrerrtion and company she was sccking. l"rom the coDtext of
lhe i¡ue.rtionilg, it appears tltat it nray havc heert llcr lroyft icrrcl'
il 'l'r. at 120. V.S. dìd no¡ further elaborate. Othcr evidcncc in thc casc indicatcs that the Facebook post
occurrecl in the spring of 2009. Tr'. al 460-4ól (K'A' rcstimony)'
r.'fhc DVD an¿ the transcripr of the interviev* ore Staffls Exhibi¡s 4 and 44.
MONTALVO V. SBEC
0023
soAH DocKE'l' No, 701-lr-846s.ÊC PROPOSAL FOR DECISION PAGE 15
only sets out V,S.'s staternonts that cliffer frorn, or add to, what she saicl in her testirnony at
hearing,
Overall, said Student l, the iuappropriale massages occuned 50 times or more) all
Mr. Montalvo wai giving her such massages up to 4 times per day.sa The abuse occurred at the
rniclclle school f,reld bouse, .the higb school weight tootil, aud at bís house.ss She stated she did
not tell her parents because they would not believe her,56 She also said that, if she did not kiss
Mr, Montalvo as he lequested, he would tqll her parents that slre was undetperforming in track,
ancl they would get mad at her,s?
Concerning the alleged incident in r+4rich Mr. Montalvo offbrecl V.S, rnoney for sex, slte
stated in the interview:
And he was like uh,.,I've heard that your [sic] like really good and whatever. He
was like I know your ..,will you evsr havs sex rvith me? .A,nd I was like no coach
I will never do that rvith you, And he was like rvell I know your parents need
money and sttrff, I have money, I just rvent to the bank right now, I have--$2,000
with me. That's what he saicl íwas like no I'm not going tõ do that coach.s8
In the intewiew, V,S..described only one incidcnt of rape: the occunence in the field
house, Her clescription was largely consistent with that of her testimony at hearing, She stated
that Mr, Montalvo told her not to tell auyone or she woulcl lose her scholarship aud be "a
nobody." She also statecl that, afÌenvard, she asked an olcler friend to buy "plan B" for her.se
With respect to what happened rvhen V.S. 'weni alone to Mr. Monlalvo's house fo use the
hot ¡rb, she statecl in the interview be massaged her. She said that, cvery other time she had been
to lvfr. Montalvo's house, his wife had been present, but this time she was not there, According
t stafi's Exhibit 4A a¡ 16.
tt ltl. ar l7-18.
36
Id.at77.
sj ld. at 19.
sì Id. at ll2.
!ç Tr. at 22-21 . Thc ALJ as.sunrcs that "pìarr B" is lhe brand nar¡re or colloqIial expt'essiort lor a "tttot'ning-
afìer" contraceplive.
-
MONTALVO V. SBEC
0024
soaH DOCKET NO. 701 -1 l-8468.EC PROPOSAL F'OR DECISION PACE 16
to V.S., he took her bla off, then put it back on, and he touched various private parts of her body
and engagcd ill oral sex. She said intetcourse did not occu¡.óo
When talking about the state track meet in Austin in May of her senior year, V,S, said
that Mr. Montalvo brought in each other girl 1o his hotel room to talk for about l5 minutes, but
t¡at he kept V,S. in there for 2 hours. She said that he made her hug ancl kiss him.Úl
In the interview, Stuclent I said the first person she told about these events was her
counselor at college. She told the counselor because of the emotional shain, she indicated.
Then, she said, she told her parents in February 2009,62
3. lestimony of llrasmo l\lontalvo
Mr. Montalvo began working as a teacher fi 1992. At first, he was a "ltolcling teaoher"
r.vithno cerlifrcation or benefits. Then, in about 1995, he received emergency certit'ication,
followed by full certification in 1997. He has been working as a full+ime teacher ever since'd3
V.S. and Mr, Montalvo fi¡st met il t}e sunrmer before she entered ninth grade.
According to Mr. Monralvo, he never touched V,S. in any inappropriate way or in a way that
could have been misinterpreted as inappropriate.#
In thc summer of V.S.'s freshman year, said lvlr. Montalvo, her doctor told her she had a
heart condition that could make it dangerous for her to run. Mr. Montalvo stated that he told
V,S.'s mod:er that, if she were his child, he rvould not let her run, IJowever, V.S.'s nrotber
replied that she was goin-e lo let her daughter do what she loved to do.65
'û lcl. at 14-16, 43-46;
6' lrí. a|34.
6! td. at 38-39 .
ó3
Tr, at 725-72':.
óa
Ir, at '12"1-728.
65
Tr. at 3'1)-3'¡2.
MONTALVO V. SBEC
0025
PROPOSAL FOR DECISION PAGE ]?
soAH DocKET' NO. 701-l l-8468.8C
lvl¡. lvlontalvo was asked about the occasion of V,S,*s injury at the Doma meet'
He said
that he did not touch of massage V,S.'s hamstring because he was busy with
all [he other events
at the meet.66 LIe stated that Assistant Coach I¡ checkcd out V,S.'s injury. Hc fur'ther said that
v,s.'s falher approached him at tbe rneet after V-S. was injured. According to Mr. Montalvo,
.,I wanr to handle this. I will take her to the cloctors. I clon't want bet seeing a
her father sâid,
trainer, but
traineL.,, Mr, Montalvo said he told V,S.'s thúer he woulcl prefer for V'S. to see the
paleuts rvere
tbe father saicl the trainer rvould make her sit out. In Mr. r\4ontah,o's words, "Her
extreme on having her perform," According to Mr. Motrtalvo, V.S,'s iather said he woulcl takc
V.S. to a doctor in Mexico.67
Tlre college recrurter gave V.S. a scholarship contract at the Donna meet' lvfr' Montalvo
I 's parents, and
testified that, after the rneet, he looked over the contract at the request of Student
totd them he thought it was a good deal.68
Mr. Montalvo furlher testified that, following the meet, back at home, he told V'S. tç
go
to the Uainer, but she refused, as she hacl in the past. Mi. lvlontalvo said that she told him
she
he stated thât he
was seeing a doctor in Mexico. Hcilever, at anofher point in his testilnony
and he also soid
shoulcl have sent her to see the trainer, but he could not recall whethe¡ he did-so,
that he did ¡rot send her, saying that she refused to go. According to lVIr. lvlont¿lvo, V,S' was
afrairJ of not being allowed to participate at district in her senior year' Mt' Montalvo also saicl
. that, once V.S. regained her range of motion about
two weeks following her injury, he would rub
down her hamstring. Hoyever, he statecl, he would never give ller more extensive
0r
inappropriate nìassages, He said he gave other girls ntb do$'trs, too, ovetall,
he aclclressecl
V.S.,s injury with'stretching, rub down.s, ice baths, and the whirlpool. FIe denied
telling her to
go to Mexico for injections. I{e said that V.S. was able to restllne competing, and in
lacl shc
competed at clistrict, qualifying for regionals, lvlr. Montalvo stated that he never
told V'S' she
SOr\H's proceclural rules to 3o, Mr. Montalvo filed an
arlswer allegation: "ln or around February of 2008, Student I
injured ndeni took Srudent I to a bus and massaged hel leg at
rhat tilx of Hearing, filed rvith SOÄH), There is no allegation or
evideltc in anY waY sexual'
ó?
Tr. at 355,35'l-158,360,366,369,3J0,J89,736-13s,'154,796-197'825-826'
68
Tr. al '194-'795.
MONTALVO V. SBEC
0026
soAH DOCKET NO, 70t-ll-8468.8C PROPOSÄL FOR DECISION PAGE I8
could lose her schola¡ship if she ,vvent to the tmirter. FIe said he just told her Ìhat the college's
conlract said if a student clid anything that might embatrass the school, the student could lose the
scholarship.6e
As to being alone after practice with V,S. at the fìelct house,I\4r. Montalvo testified that
he dict not thínk that had ever happened. He said that he sometimes, but not frequcntly, had V'S,
or other girls stay after practice if they needed to work on something partioular. He said most of
the hamstring rub dowrs he administered occuned in the lield, and he could not recall u'hethcr
he ever rubbed her leg down in the field house, but he never rubbed her down alone in the
field
house after else had left.7o He also saicl that he occasionally gave V.S. rides home late
"u"rylo"
at night after track meers ilr her senior year, so he was alone with her for a few minutes on those
ocsasions.?l
Mr. Montalvo testifiecl about the students' use of his Jacuzzi. FIe statecl that there rvere
two occasions: one over spring break and one during Easter break, During those times, he said,
the whirlpools and ice baths at school were unavailable because the school persoturel responsible
for untocking the training room were not inctined to do that during school bleaks. Around the
time of spring break, Mr. Montalvo testified, V.S. was just starting to jog and participate in
practice follorving her injury, and she wanted to use the lacuzzi, She came r,vith two other girls,
Mr. Moptalvo said his wit'e was pressrt in the house while the girls used the Jac.uzzi.?2 On the
seconcl occasion, V.S. came alone during Easter break. According to Mr. Montalvo, his wife and
children were present in the bouse on that occasion, too.73
6' 'lr. ut 342-349,3-\8,3ótl, t'l},394.402-403,736"738-14r,'150,'l52-753,799'
?0 -348,384:386, 409, 411'412, 741-742, 800-801'
Tr. at 347
?r
Tr, at 830,
?2 Mr, lr4ontalvo titrlJrer lestified tllaf, <lue to the s(r'ess and elllbarrassment arising out of his crilrinal
prosectttiott, lte and his wife separated followirrg his túaì' Tr' al 732"
?l Tr. al 394-401,410-41t, i56-160, $12-815, Bl?-320, Mr. Montaivo saicl he also sent V.S' and anothsr
girl to Balcleurar Garza's liouse for carclio aqua therapy, because he was lhe only per.son Mr. ]4ontalvo kne"v rvho
had a pool. Tr. nt 803.
MONTALVO V. SBEC
0027
soAH DOCKET NO. ?01-11-8468,EC PROPOSAL FOR DECISION P;IGE l9
Mr, Montalvo denied offering V,S, or her family any money, for sex or otherwise, Ile
stated that, at that time, he was not in a position to give money to others. and it took him about
3 weeks to make $2,001),74'
. V.S. went to the State track meet in Austin in May 2008, Although she had not qualified
f'or state, she and another girl who had not qualilied were allowed to go. Mr' Montalvo
explained that tbroughout the years, V,S. had done vety lvell, practiced, and given her all, so it
was appropriate f'or her to attend. IJe stated lhat he met with each girl in Iús hotel loom for about
l0 minutes. during rryhich time he kept the door open, He gave each girl a little gift, costume
jervelry that his sistcr had made, and told eacb girl it \Ã,as a token for her hard work and
{edicafion. He saicl that, as he talked to thern, he Íied to be motivational and to hit on the
positiúe poínts of what they had done right and 'what their futures held.7s
Mr. Montalvo descdbed V,S. as someons lacking in self-esteetn who needed c'onstant
attention and reinforcement. She "needed to hear lhe praise, to hear you can do it, you can do
it.,' He indicated that she was ernotionally neetly, having to "hea¡ it and hear it and hear it" so
that she could believe it.?6
With respect to the phone calls, Mr. Montalvo stated that the num6er of calls with V,S.
jur¡ped in Februaly or March of 2008, rvhen she suflèred he¡ hamst¡ing iqiury. He said that the
injury was devastating to Student l's family. Her senior year was suptrlosed fo be her year to
shine. He stated that the injury made her feel so doun that she told him, on one occasion, she
had had a suiciclal tlrouglrt the previons rveek. He dicl not wa.nt to tell her parents becatlse he was
afraicl thcy rvould oveneact, especially as V-S,'s father had an explosive temper. Ìvfr, Montalvo
testifiecl that he spent time on the phone with her, reading aloud motivational quotations flom
John Wooclen (the IICLA basketball coach) arrd talking to her about track, her problems, ancl
horv to get into a better state of mincl. He stated that they sometimes tâlked at night, after his
children went to sleep. Mr'. lvfolrtalvo said that V.S. rvoulcl often text him, and he would call her
1a
1'r,ai743.
?5 Tr.at745,804-805. Mr'.Monraivosaidthatthejewelrycostaboutfivetoten dollars. ld'af 33i,754'
to 'l'r. at 728,'186.'190.
MONTALVO V. SBEC
0028
soAlt DocKDT NO. XXX-XX-XXXX.DC PIìOPOSAL I¡OR DÈCISION PAGE IO
back. I-Ie sraterl he dirl not talk to V.S. about his relationship with his wife, V,S' told him that
she did noi have rnany fi'iends, and he thought that talking to her rvould help her. Mr'. Montalvo
also talkecl to other girls orr tlre telephone; he identified K,4,, 4,G., l!'P., and V,C., saying that
he would talk to them about track, how to improve their performance and to train, and also about
their problems. He thought at the time that the phone calls wete appropriate, rhat he was being
helpf¡l to V,S. He felt tha[ she was getting better over time, FIe stated, "I thought I wa^s rlaking
a clifference."TT
'When girls graduated and plarured to run track at the next level, said Mr. Montalvo, he
would buy them .hottr, wind suits, shirts, and shoes that they could use for their atbletics' He
said that he did this lbr V.S,, too, but he never singled her out for special treatrnent.Ts
lvfr. Montalvo stated that V.S.'s behavior toward him never changed. After graduation,
Mr. Montalvo aurange{ for a television interview about her scholarshíp; they both participatecl in
the interview, in *hich V.S. acted cxcited and happy. Mr. Montalvo stated that she would hug
him every day, she showed up at surnmer track piactice, and she was still behaving very friendly
torva¡d him in April 2009 fiust befbre he learned of her accusations), whert she attended otle of
the meets, Indeed, said Mr, Montalvo, V.S, wanted to riclc with the team on the school bus to
that mee{, but he had to tell her no because of liability insurance conÇerns. V.S. still attended the
meet, he said, spending the whole day there, helping him coach several evettts,T9
4. Telephone Records
lvÍr, Montalvo and Student I excharrgecl about 4tl0 phone calls from lfebntary through
.lr.rne 2008. The calling pealced in March and r.\pril 2008, with about 160 total caìls for each of
those monrhs. Over tbe Febmary-through-June period,82 calls were afler'10:00 p.m.. rvith
l\4r. lvlontalvo placing 80 percent of the late-night calls and V.S. placing 20 percent of thern.
1i Tr. ¡t404-406,728-'732,134,'156-75'r.,7't0-771,771, ,185-'t36,?89. Mr. Montalvo said he rnentio¡red to
his assi.srarrr coachcs that he rvas trying Co help \',S. out, and hc also tolkcd Ìo 8.P,, to sec ilshc could bcû'iend V.S.
I¡t. '¿t 40'? ,795-786.
t8 'l'r. at 137,755.
" Tr. a¡ i 48-'r 4 9,'7 6l -'7 64, 821 -822; Respolt detrt' s Exhibits 23 and 21'
MONTALVO V. SBEC
0029
PROPOSAL.FOR DECISION PAGN 21
soAH DocKET NO. 701-lI-8468.8C
Overall; N{r.. lvfontalvo placecl 66 percent of the c.alls, artd V.S placed 34 percent' Most
of the
calls lasted just seconds or a few rninutes, Nincteen oalls lasted over a half-h<lur, a¡rci 4 calls
laste<l an hotr or more. All calls between lvfr. il4ontalvo ancl V.S. enclcd in late June'8o
5. TestimonY of Otber'Witnesses
î. Student l's Pnrents
yolandø. Søttclrcz, V.S,'s mother, testified that she knew and trusted Mr, Mont¿lvo,8l
S¡e stated that, when her daughter injured her harnstring, he told them that she should not go to
the trainer because collegos, when they award scholarships, look to see if a student athlete lns zur
injury on her record.82
Accordilg to Ms. Sanchez, Mr, Montalvo helped V.S, r,vith the papetwork for her
scholarship and even 6avelcd to Corpus Clhristi with them to meet with representatives of the
Ms, Sanchez stated tilat V.S, has not r¡,anted Mr. Montalvo to go with them, but Mr. and
"óll"g..
Ms. Sanchez insisted he go to hclp with the scholal'ship issues,83
Ms. Sanchez said that she saw Mr. Montalvo slap V.S.'s bottom on two occasìons at her
home. The first time, she said, v.S. got upset and told lúm to stop. Ms, Sanchez said that she,
too, asked Mr, Montalvo to leave V.S. alone, and he jttst turnecf arouncl ancl left. The second
time Mr. Morrtalvo slapped V,S,'s bottom, Ms. Sanchez stated, occurred on the same day.8a
Ms. Sanchez said that she saw Mr.. Montalvo poke V.S. in the ribs, and V.S. becarne upset.85
Ms. Sanchez also said that V.S, stopped rvanting to go to practice alone, so Ms, Sanchez wor¡ld
Ec Exhibirs 4 and 5'
Staffs Exhibits 2and3; Respondenf s
Er
Vfs. Saochez testißed through ân irrtetpreter,
8'Tr.af179-1ß0.
tt Tr, at 184-l 85.
u Tr. at lBl-182. lvls. Sanchez <Jid not explain whether N4r. Mon¡afvo returned to thc bouse-
t5 'I'r. at 185-186, 192.
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send one of her sons along. In acldition, V,S. did not want any pic1rlrgs taken with
Mr, Montalvo
at her graduation.s6
O¡e day, said Ms- Sanchez, V.S, came home from Mr, Ivfontalvo's house, where she had
been using flie Jacvzzi for the second time. V.S. came into the house rwapped i¡ a torvel
and
crying, but she rvould not say wlry she was so distraught, When pressed, said Ms' Sanclrez, V'S'
told her that she was upset about her leg injury,s7
On anotlrer oÇcasion, said lvfs. Sa,nohez, V,S. was la
This text is long and has been trimmed here. Open the source document for the complete record.