                IN THE SUPREME COURT OF TEXAS
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                                            NO . 13-0537
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           IN RE STATE BOARD FOR EDUCATOR CERTIFICATION, RELATOR

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                              ON PETITION FOR WRIT OF MANDAMUS
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       JUSTICE GUZMAN , joined by JUSTICE BROWN , concurring.


       The State Board for Educator Certification has wisely observed that “[a] certified educator

holds a unique position of public trust with almost unparalleled access to the hearts and minds of

impressionable students. The conduct of an educator must be held to the highest standard.” 19 TEX .

ADMIN . CODE § 249.5(b)(1). Because the Court correctly concludes that a trial court has discretion

to deny suspension of a non-money judgment when the State files a notice of appeal, I join its

opinion. But 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.

Therefore, I respectfully concur in the Court’s denial of the petition for writ of mandamus.

       We review a trial court’s order granting or denying an injunction under an abuse of discretion

standard. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). A trial court abuses its

discretion if it acts without reference to guiding rules and principles. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). Our guiding principle for issuing injunctions

is that trial courts should balance the competing equities by weighing the probable harm to the
plaintiff if an injunction is erroneously denied against the probable harm to the defendant if an

injunction is erroneously granted. See In re Gamble, 71 S.W.3d 313, 317 (Tex. 2002); Storey v.

Central Hide & Rendering Co., 226 S.W.2d 615, 618–19 (Tex. 1950). If the injury to the

complainant is slight compared to the injury caused to the defendant and the public, relief will

ordinarily be refused. Storey, 226 S.W.2d at 619. But the injunctive relief the trial court affords and

its procedure for doing so are different matters. Substantively, we will uphold a trial court’s

injunction unless, after searching the record, it is clear that the trial court’s decision was arbitrary and

unreasonable. See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987). But

procedurally, the trial court must indicate that it weighed the competing equities; if the record does

not affirmatively indicate the trial court did so, then this failure is a departure from guiding principles

and amounts to an abuse of discretion. See, e.g., Nath v. Tex. Children’s Hosp., __ S.W.3d __, __

(Tex. 2014) (remanding for trial court to assess an omitted but relevant element for determining the

amount of sanctions). In such cases, a remand is appropriate to enable the trial court to demonstrate

that it weighed the competing equities. Id.

        Here, before issuing the injunction, the trial court was required to balance the threat to the

safety and welfare of Texas schoolchildren if an unfit educator is allowed to teach and the harm to

the educator if he is deprived of the opportunity to earn a living as a teacher during the appeals

process. Importantly, balancing these equities involves more than merely identifying two sides.

Instead, “[t]hese conflicting interests call for a solution of the question by the application of the

broad principles of right and justice.” Storey, 226 S.W.2d at 619. But here, the trial court’s findings

of fact and conclusions of law only addressed the potential harm to Montalvo:




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               Erasmo Montalvo, Plaintiff, has shown by a preponderance of the evidence,
       that he will be irreparably harmed if a permanent injunction is not issued prohibiting
       the Defendant State Board for Educator Certification from treating as revoked or
       revoking his educator certificate based on the facts and allegations relied on by
       Defendant in SOAH docket No. 70 1-ll-8468.EC, until the appellate court issues its
       ruling in any appeal taken by Defendant.

               Plaintiff has shown by a preponderance of the evidence that, based on the
       history of this case, the harm to him is imminent. It is probable that the Defendant
       will file a Notice of Appeal, claim that its Notice automatically supersedes the
       injunction, and represent that Plaintiff’s educator certificate is revoked during the
       pendency of the appeal, (which may involve an indefinite extended period of time),
       during which Plaintiff’s ability to obtain employment consistent with his experience,
       training, and education, would likely be significantly adversely affected.

As the Court observes, this interest is significant and warrants full consideration.

       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 sports bra and biker shorts—to use the jaccuzi 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



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student-teacher relationship could substantially harm the safety and welfare of Texas schoolchildren.

If particular considerations caused the trial court to view the harm to Montalvo as outweighing the

potential harm to schoolchildren, the court should have said so.

        The question is not whether a trial court could fully balance the competing equities and arrive

at this trial court’s conclusion. That balancing is within the trial court’s discretion and we will

uphold that substantive decision when supported by some evidence. But process matters, and this

Court has long been the creator and guardian of those processes. While we cannot arbitrarily change

a trial court’s result, we can ensure that trial courts abide by the time-honored process of balancing

the competing equities. And the record (such as findings of fact or a hearing transcript) provides our

only method of knowing that balancing occurred. The record here is simply devoid of factual

support that the trial court considered the potential specific harm to schoolchildren if the educator

is allowed to teach pending the outcome of the appeal.

        But while the record fails to indicate the trial court balanced the competing equities, the State

Board for Educator Certification, as the relator in this mandamus proceeding, has the burden of

proving that the trial court clearly abused its discretion. Walker v. Packer, 827 S.W.2d 833, 839

(Tex. 1992). The Board limited its argument to the assertion that the trial court lacked discretion to

grant an injunction during the pendency of the appeal—not that it retained discretion but abused it

given these facts. While the relator here has not requested relief for the trial court’s particular abuse

of discretion, it is paramount that trial courts be cognizant of their obligation to fully demonstrate

the calculus they typically engage in when granting injunctions. Accordingly, I concur in the Court’s

denial of the petition for writ of mandamus.




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                                           ____________________________________
                                           Eva M. Guzman
                                           Justice


OPINION DELIVERED: December 19, 2014




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