The opinion
ACCEPTED
03-13-00370-CV
8363329
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/23/2015 2:46:18 PM
JEFFREY D. KYLE
CLERK
NO. 03-13-00370-CV FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS12/23/2015 2:46:18 PM
JEFFREY D. KYLE
Clerk
The State Board for Educator Certification,
APPELLANT
v.
Erasmo Montalvo,
APPELLEE
Motion for Rehearing
Erasmo Montalvo, appellee, files his Motion for a Rehearing of the
Court’s Memorandum Opinion issued in this cause on November 24, 2015
and shows the following:
The decision of the Honorable Court of Appeals in this case, holding
that the State Board for Educator Certification may revoke the teacher
certification of a teacher who has not done anything unethical, not violated
any law or regulation, and who has engaged in no conduct that harmed any
person or that was intended to harm any person, establishes a dangerous
precedent that makes a governmental agency unaccountable for its decisions,
and is in error in the following respects:
1
1. The Unconstitutional As Applied Issue
On pages 8-9 of its Opinion, the court states that Mr. Montalvo has
waived his argument that the term “unworthy to instruct” is
unconstitutionally vague because he did not challenge the rules containing
the term at the State Office of Administrative Hearings hearing nor raise it in
his complaint in District Court.
First, Mr. Montalvo’s argument that the term “unworthy to instruct” is
unconstitutionally vague was made in response to Issue III in the agency’s
brief: i.e., “The Board’s standard of ‘unworthy to instruct’ is not
unconstitutionally vague.”
In other words, it was the agency, as the party challenging the trial
court’s judgment, that raised the issue. Mr. Montalvo disagreed with this
position, which was an integral part of his case. He did not waive the issue
by responding to it.
Further, Mr. Montalvo had raised this issue clearly and consistently
throughout the proceedings:
a. Mr. Montalvo raised it in his Motion for Rehearing before the agency
(See Clerk’s Record in 03-12-00723, p. 79, an interlocutory
2
proceeding in this same matter). At pages 12-13, (Exception No. 2),
Mr. Montalvo wrote the following:
Mr. Montalvo excepts to the revocation of his certificate as a violation
of his right to due process of law under the Federal and State
Constitutions.
It is a general principle of law that a statute or
regulation must be definite to be valid. Due
process of law in legislation requires definiteness
or certainty. If a regulation is incomplete, vague,
indefinite and uncertain and it forbids the doing of
an act which is so vague, that men of common
intelligence must necessarily guess at its meaning
and that such men differ as to application, it
violates the first essential of due process of law.
Lone Star Gas Co. v. Kelly, 140 Tex. 15, 165
S.W.2d 446 (Tex. Comm’n App. 1942); Connally
v. General Construction Co., 269 U.S. 385, 26
S.Ct. 126, 70 L.Ed. 322 (1926); 16A C.J.S.
Constitutional Laws 569(5), p. 584; 16 Am.Jur.2d
551—552.
Sanders v. State Dept. of Public Welfare, 472 S.W.2d 179 (Civ.App.
1971—Corpus Christi, writ dismissed). See also, Vista Healthcare,
Inc. v. Texas Mut. Ins. Co., 324 S.W.3d 264, 273 (Tex. App.—Austin
2010, pet. denied); and TXU Generation Co., L.P. v. Public Utility
Com'n of Texas, 165 S.W.3d 821, 839 (Tex.App.–Austin 2005, no
pet.), which states:
When determining whether a rule adopted by an
agency is unconstitutionally vague, Court of
Appeals scrutinizes the rule by asking whether the
ordinary participant in the regulated market could
understand and comply with it.
3
In the present case, the rule states that the nature, timing, and
extent of the communications between a teacher and a student will be
taken into consideration. Certainly, if the nature of the
communication is a solicitation of a romantic or sexual relationship,
any teacher would be hard pressed to say that he or she did not
understand that talk of this nature was covered by this rule.
But that is not what we have here. We have a specific rejection
that there was any improper communication or other conduct by Mr.
Montalvo that any ordinary person or educator would understand to be
prohibited by this rule, and to such an extent that engaging in that
conduct could lead to the revocation of his or her certificate even in
the absence of any harmful conduct. Indeed, even if the conduct were
entirely well-intentioned and beneficial to the student, as in this case.
b. Mr. Montalvo raised it in his Original and Amended Petitions for
Temporary Restraining Order, Temporary Injunction, and Permanent
Injunction in District Court (see Clerk’s Record in No. 03-12-00723-
CV):
19. The Decision of the State Board for Educator Certification to
revoke Plaintiff’s teaching certificate was arbitrary and capricious and a
denial of due course of law under Article 1, Section 19 of the Texas
Constitution, because the conduct purportedly prohibited is so vague,
indefinite and uncertain that men of common intelligence must
necessarily guess at its meaning. Lone Star Gas Co. v. Kelly, 140 Tex.
15, 165 S.W.2d 446 (Tex. Comm’n App. 1942); Connally v. General
Construction Co., 269 U.S. 385, 26 S.Ct. 126, 70 L.Ed. 322 (1926);
16A C.J.S. Constitutional Laws 569(5), p. 584; 16 Am.Jur.2d 551—
552.
4
c. Mr. Montalvo raised it in his trial court brief (which was not
requested as part of the clerk’s record, but can be requested if the
Court determines that Mr. Montalvo raising the issue in the trial court
is, indeed, an issue):
Point of Error No. 3 (Restated)
The State Board for Educator Certification violated Mr.
Montalvo’s right to due process by basing its decision to revoke
his certification on a standard so vague that no reasonable
person would understand what conduct was prohibited.
Discussion of Point of Error No. 3
The Administrative Law Judge, in Conclusion of Law No. 7
stated: “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.”
The Board changed this Conclusion of Law to
read:
Based on Findings of Fact 11, 14, 18, 20, 22, 23
and 26, Respondent exceeded the bounds of the
proper educator-student relationship and is a
person unworthy to instruct or supervise the youth
of this state.
At the Temporary Injunction hearing in this case, the Agency’s
attorney stated that “unworthy to instruct” is a concept similar
to what Justice Stewart said about pornography: “You know it
when you see it.”
5
In certain instances, that might be true. For example, if a
teacher has a romantic relationship with a student or beats a
student to a pulp for chewing gum in class, the phrase
“unworthy to instruct,” vague and general as it is, would be
sufficient to place a teacher on notice that if he engages in this
conduct, his certification will be in jeopardy. It is reasonable to
attribute to any teacher notice that having a romantic
relationship with a student is out of bounds, as is giving a
student a physical beating in the absence of extenuating
circumstances.
It is also reasonable to attribute to the teacher notice of the
Code of Ethics, which sets forth numerous types of conduct that
are frowned upon by the state.
But what about conduct that falls outside the Code of Ethics
that the Board wishes to use as justification to revoke or take
other punitive action against a teacher? Those cases, like the
present one, will always involve a question as to whether the
phrase “unworthy to instruct” provides sufficient notice that
particular conduct is prohibited and can lead to the loss of one’s
certification and, in essence, his ability to make a living in the
profession he has trained for.
The notice question is a due process question. “The standard
rule is that a statute is unconstitutionally vague if the required
course of conduct is stated in terms so vague that people of
common intelligence must guess at what is required.” Texas
Dept. of Pub. Safety v. Chavez, 981 S.W.2d 449, 452 (Tex.
App. 1998).
The importance of this concept is explained by the U.S.
Supreme Court as follows:
It is a basic principle of due process that an
enactment is void for vagueness if its prohibitions
are not clearly defined. Vague laws offend several
important values. First, because we assume that
man is free to steer between lawful and unlawful
conduct, we insist that laws give the person of
6
ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by
not providing fair warning. Second, if arbitrary and
discriminatory enforcement is to be prevented,
laws must provide explicit standards for those who
apply them. A vague law impermissibly delegates
basic policy matters to policemen, judges, and
juries for resolution on an ad hoc and subjective
basis, with the attendant dangers of arbitrary and
discriminatory application. Third, but related,
where a vague statute ‘abut(s) upon sensitive areas
of basic First Amendment freedoms,’ it ‘operates
to inhibit the exercise of (those) freedoms.’
Uncertain meanings inevitably lead citizens to
“steer far wider of the unlawful zone' . . . than if
the boundaries of the forbidden areas were clearly
marked.'
Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct.
2294, 2298-99, 33 L. Ed. 2d 222 (1972).
The present case is the epitome of this rationale. The Agency
has used vague language (i.e., “unworthy to instruct”) to
authorize an ad hoc resolution to reach the result it wants to
reach on a subjective basis, as opposed to the result mandated
by the evidence and fact findings at a full and fair hearing, with
the attendant dangers of arbitrary and discriminatory
application.
Certainly, as noted above, there are circumstances in which the
vague phrase “unworthy to instruct” is adequate. The regulation
is not, therefore, unconstitutional on its face. It is, however,
unconstitutional as a denial of due process as to Mr. Montalvo.
Where no First Amendment rights are involved, the court need
only scrutinize the regulation to determine whether it is
impermissibly vague as applied to Mr. Montalvo’s conduct.
Clark v. State, 665 S.W.2d 476, 483 (Tex. Crim. App. 1984),
citing Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S.
7
489, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982), and United
States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228
(1975). In this case, assuming, for the sake of discussion, that
no First Amendment rights are involved, the phrase “unworthy
to instruct” fails to place him on notice that the conduct set
forth in Finding of Fact Nos. 11, 14, 18, 20, 22, 23 and 26
comes within the meaning of this term—especially when that
conduct has been considered by the fact finder and rejected as
being within the scope of any prohibited activity when placed
in context of the entire situation.
Nor is the vagueness of the phrase when applied to Mr.
Montalvo’s conduct lessened by the inclusion of the Board of
the words “exceeded the bounds of the proper educator-student
relationship,” when this standard is no more specific, when
placed in the context of the Findings of Fact concerning Mr.
Montalvo’s conduct, than is “unworthy to instruct.”
The Agency relies on the following language, which was
presented to the Administrative Law Judge, to bail it out:
As a Texas Court of Civil Appeals ruled in the
seminal case of Marrs v. Matthews, 270 S.W. 2d
586 (1925), “unworthy to instruct” means the lack
of ‘worth’; the absence of those moral and mental
qualities which are required to enable one to render
the service essential to the accomplishment of the
object which the law has in view.”
34 Tex Reg 5422.
Plaintiff will forego mentioning the fact that this definition is
every bit as vague as the term it attempts to define.
The Agency’s explanation continues:
Therefore, the moral fitness of a person to
instruct the youth of this state must be
determined from an examination of all relevant
conduct, is not limited to conduct that occurs
while performing the duties of a professional
educator, and is not limited to conduct that
8
constitutes a criminal violation or results in a
criminal conviction.
Id.
This language actually undercuts the Agency’s argument,
inasmuch as the Board, in concluding that Mr. Montalvo was
“unworthy to instruct,” failed and refused to examine all relevant
conduct, and to put the Findings it cherry-picked in context, allowing
it to reach its arbitrary and capricious conclusion.
Finally, the Agency points to the following language in its
submission to the Texas Register:
Educators have positions of authority, have
extensive access to students when no other adults
(or even other students, in some cases) are
present, and have access to confidential
information that could provide a unique
opportunity to exploit student vulnerabilities.
Therefore, educators must clearly understand the
boundaries of the educator-student relationship
that they are trusted not to cross. The SBEC
considers any violation of such trust, such as
soliciting or engaging in a romantic or sexual
relationship with any student or minor, to be
conduct that may result in permanent revocation
of an educator’s certificate.
Id.
At last! A statement with some degree of specificity. Although
“the boundaries of the educator-student relationship” is still
questionable, at least it contains examples of those boundaries
that the ordinary person (even a teacher) should be able to
understand: No romantic or sexual relationships with a student.
But wait! That is precisely what is specifically prohibited by
Standard 3.6 of the Code of Ethics. This conduct is what the
Administrative Law Judge rejected in her Findings of Fact and
which the Board effectively rejected by adopting those
Findings, as follows:
9
Finding of Fact No. 21: “There is insufficient
evidence to support a finding that the rub downs
were sexual and involved inappropriate
touching.”
Finding of Fact No. 24: “There is insufficient
evidence to support a finding that Mr. Montalvo
sexually abused or assaulted V.S. when she went
to use the Jacuzzi.”
Finding of Fact No. 25: “There is insufficient
evidence to support a finding that Mr. Montalvo
sexually abused or assaulted V.S. in the field
house.”
Finding of Fact No. 27: “The phone calls were
about V.S.’s track performance and emotional
issues. The calls did not relate to or constitute a
sexual or romantic solicitation or relationship
between Mr. Montalvo and V.S.”
Finding of Fact No. 28: “There is insufficient
evidence to support a finding of any
inappropriate touching, or sexual or romantic
solicitation or relationship, between Mr.
Montalvo and V.S.”
Finding of Fact No. 29: “There is insufficient
evidence to support a finding that Mr. Montalvo
knowingly treated V.S. in a manner that
adversely affected her learning, physical health,
mental health, or safety.”
Finding of Fact No. 30: “There is insufficient
evidence to support a finding that Mr. Montalvo
intentionally, knowingly, or recklessly engaged
in physical mistreatment, neglect, or abuse of
V.S.”
10
What is it, then, that Mr. Montalvo did that falls within the
catch-all “unworthy to instruct” phrase? What is it, in spite of
the fact that nothing that he did was found to have been of ill-
intent or had a negative effect on the student in question, that
makes him a person who is not worthy to instruct the youth of
the state of Texas?
The answer is: “Nothing.”
The only thing Mr. Montalvo is guilty of is offending the
sensitivities of the Board, which apparently thinks a certain
unspecified number of phone calls made at certain unspecified
times of day, for certain unspecified lengths is offensive to
them; and that rub downs of female students by a coach make
them squeamish. As stated previously, if they want to outlaw
conduct that they find personally offensive, they have the power
to do it.
What the Board does not have the power to do, as a matter of
due process, is adopt the phrase “unworthy to instruct” in a
regulation and decide later what it means, making it an entirely
subjective concept, “with the attendant dangers of arbitrary and
discriminatory application”--especially if what it later decides is
not reasonably self-apparent to a teacher of common
intelligence. See Grayned, 408 U.S. 104, 108-09, 92 S. Ct.
2294, 2298-99, 33 L. Ed. 2d 222 (1972).
d. As noted previously, the agency raised the constitutionality of the
“unworthy to instruct” language as its own issue and spent a number
of pages in its brief discussing that issue—because it was a hotly
contested issue in the trial court. The trial court did not cite this issue
as a basis for reversing the agency’s decision, but, then, it did not have
to do so: the trial court held that the decision was arbitrary and
capricious and not supported by substantial evidence. It then followed
11
the general rule that constitutional issues will not be reached when
they can be resolved on non-constitutional grounds. In the Interest of
B.L.D., 113 S.W.3d 340, 349 (Tex. 2003).
2. SBEC's decision was arbitrary and capricious.
The Court correctly notes, on pages 4-5 of its Opinion, that a state
agency’s decision is required to be reversed or remanded for further
proceedings “if substantial rights of the appellant have been prejudiced
because the administrative findings, inferences, conclusions, or decisions are
… (F) arbitrary or capricious or characterized by abuse of discretion or
clearly unwarranted exercise of discretion.”
The Court also holds, on page 11, that “it was reasonable—not arbitrary
and capricious or an unwarranted exercise of discretion—for the Board to
conclude that Montalvo crossed the bounds of a proper educator-student
relationship even in the absence of any violations of the Code of Ethics or
other rules or policies.”
It has long been held that a decision is “arbitrary” if it is:
[f]ixed or done capriciously or at pleasure; without adequate determining
principle; not founded in the nature of things; nonrational; not done or
acting according to reason or judgment; depending on the will alone;
absolutely in power; capriciously; tyrannical; despotic.
12
King v. Falls Cty., 42 S.W.2d 481, 482 (Tex. Civ. App.--Waco 1931,
n.w.h.); Goodrum v. State, 158 S.W.2d 81 (Tex. Civ. App.--Galveston 1942,
writ ref’d, w.o.m.)
The problem with the agency’s decision in the present case is that it
employed no determining principle. It employed nothing more than a gut
feeling. A gut feeling that should have been rejected because the agency’s
own findings demonstrated that its gut was wrong.
Instead of exercising reason or judgment, the agency determined that
if something just doesn’t feel right in a vacuum, there is no amount of
context that can overcome those feelings, and the teacher who makes them
feel that way is “unworthy to instruct” the children of Texas—not because of
anything the teacher has done, but because of the agency’s reaction to it.
In essence, what the agency has done is conclude that because there
might be instances in which a teacher who engages in a large number of
telephone conversations with a student is a bad guy, all teachers who do so
are bad guys. No need to take into account its very own fact finding (No.
27) that “the calls were about [the student’s] track performance and
emotional issues” as opposed to any attempt to lead to an improper
relationship of some sort.
13
When you rely on gut feelings, there is no need to take into account
that even though there was testimony that more than 400 phone calls
between a teacher and student was a “little excessive” and “not appropriate”
(as stated by the athletic director), the overwhelming testimony was that the
more important consideration was what the calls actually concerned
(testimony of the principal and superintendent at pages 643-44, 647-49, and
873 of the SOAH transcript.) But what do principals and superintendents
know?
The same is true of the other evidence cited by the Court, all of which
failed to lead the fact finder (the person who actually heard the evidence and
observed the witnesses) to make any finding that would support a conclusion
that Mr. Montalvo is “unworthy to instruct.” Indeed, all of the ultimate
Findings of Fact rejected the idea that Mr. Montalvo had engaged in any
conduct that would make him unworthy to instruct.
Yet the agency claims that it must protect the state’s children from
Mr. Montalvo, while citing no evidence, no studies, no anything in support
the conclusion that any particular conduct of Mr. Montalvo is inherently a
danger to the state’s students.
On page 10 of its Opinion, the Court essentially adopts this line of
reasoning, stating that the definition of “unworthy to instruct” includes no
14
requirement that the educator violate any rule or policy” and “does not
require an ‘improper’ event or actual harm, and it is the duty of the Board to
protect the safety and welfare of Texas schoolchildren, which includes
assessment of potential harm.” (Emphasis added.)
Fair enough. But what is the potential harm the Board has assessed in
this case? It offers none in its Final Order. It offers none in its briefing. The
Court does not specify any in its Opinion.
In the absence of any finding or evidence of potential harm or that Mr.
Montalvo was attempting or intending to engage in harmful conduct, the
agency’s claim that it is protecting the safety and welfare of the state’s
school children rings hollow. Arbitrarily and capriciously hollow. It is more
likely to create a hole to be filled by someone who actually is a threat to
children by removing someone who has been thoroughly vetted and found to
be nothing but a human being who, like most beings, is not perfect.
Being imperfect aside, the agency has no valid basis in the law, the
evidence, or any finding by the fact-finder for concluding that Mr. Montalvo
did anything that was a threat to the safety and welfare of any student in the
State of Texas or was intending or likely to do anything that would make
him a threat to any child.
15
CONCLUSION
This case demonstrates why we have hearings before upending
someone’s life by depriving him of his livelihood and career: in order to
ensure that decisions that devastate good people and their families are only
made after all relevant evidence is received and all relevant factors are taken
into account and given their proper context.
If the current decision stands, this agency no longer needs any rational
basis for revoking a teacher’s certification. It is, effectively, unaccountable.
All it has to say is, “We disapprove of what you did, and it doesn’t matter
whether you had any basis for knowing in advance that we would
disapprove of it.”
This is what is commonly referred to as a government of men (and
women), not of law.
Which is not a good thing.
PRAYER FOR RELIEF
For the above reasons, Erasmo Montalvo, appellee, respectfully
requests that the Court withdraw its decision in this case issued on
November 24, 2015 and affirm the judgment of the trial court; or remand the
16
case to the trial court for consideration of the “unconstitutional as applied”
issue.
Respectfully submitted,
BRIM, ARNETT & ROBINETT,
P.C.
Attorneys at Law
2525 Wallingwood Drive
Building 14
Austin, Texas 78746
(512) 328-0048
(512) 328-4814 (facsimile)
BY:__ /s/ Mark W. Robinett
Mark W. Robinett
State Bar No. 17083600
CERTIFICATE OF COMPLIANCE
The word count is 3927. The word processing software used to
prepare this filing and calculate the word count is Microsoft Word 2010.
/s/ Mark W. Robinett
MARK W. ROBINETT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
instrument has been served via the court’s e-filing system on Ellen Sameth,
Assistant Attorney General on this 23rd day of December 2015.
/s/ Mark W. Robinett
Mark W. Robinett
17