                                                                                         ACCEPTED
                                                                                     03-13-00370-CV
                                                                                             6291805
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                               7/30/2015 12:41:14 PM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK
                         CASE NO. 03-13-00370-CV

                                                                   FILED IN
                                                            3rd COURT OF APPEALS
                   IN THE COURT OF APPEALS                       AUSTIN, TEXAS
          FOR THE THIRD DISTRICT OF TEXAS AT               AUSTIN
                                                            7/30/2015 12:41:14 PM
                                                                JEFFREY D. KYLE
                                                                     Clerk

          STATE BOARD FOR EDUCATOR CERTIFICATION,
                          Appellant,

                                      v.

                            ERASMO MONTALVO,
                                 Appellee.


   On Appeal from the 200th Judicial District Court of Travis County, Texas;
       Cause No. D-1-GN-12-002991; Before the Honorable Tim Sulak


                       APPELLANT’S REPLY BRIEF


KEN PAXTON                              ELLEN M. SAMETH
Attorney General of Texas               Assistant Attorney General
                                        State Bar No. 17555550
CHARLES E. ROY                          OFFICE OF THE TEXAS ATTORNEY GENERAL
First Assistant Attorney General        Administrative Law Division
                                        P.O. Box 12548
JAMES E. DAVIS                          Austin, Texas 78711-2548
Deputy Attorney General for             Telephone: (512) 936-1838
Civil Litigation                        Facsimile: (512) 457-4608
                                        ellen.sameth@texasattorneygeneral.gov
DAVID A. TALBOT, JR.                    Attorneys for Appellant
Chief, Administrative Law Division

Oral Argument Requested                                           July 30, 2015
                      TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
I. STATEMENT OF FACTS ...................................................................................1
II. ARGUMENT AND AUTHORITIES ..................................................................3
              1. Reply to Appellee’s section regarding the Board’s lack of authority to
                 revoke an educator certificate “in the absence of actual wrongdoing.”
                 (Appellee’s Br. at 11) ............................................................................3
              2. Reply to Appellee’s section that the Board’s reliance on Marrs v.
                 Matthews is misplaced. (Appellee’s Br. at 11) ....................................4
              3. Reply to Appellee’s argument that the Board took Findings of Fact “out
                 of context” in rendering its Final Decision and Order. (Appellee’s Br.
                 at 15) ......................................................................................................7
              4. Reply to section regarding statements made by Merle Dover, TEA
                 Deputy Associate Counsel. (Appellee’s Br. at 21–22) ........................8
              5. Reply to Montalvo’s section regarding adoption of the Educators’ Code
                 of Ethics and the lack of statutory cite for “unworthy to instruct.”
                 (Appellee’s Br. at 24–25) ......................................................................9
              6. Reply to Montalvo’s statement that the Findings of Fact do not support
                 the Board’s changes (Montalvo’s Issue II). ........................................10
                            a. Why Whalen does not support Montalvo.............................12
              7. Reply to Montalvo’s section describing the “unworthy to instruct”
                 standard as arbitrary and capricious (Montalvo’s Issue III). ..............14
              8. Reply to Montalvo’s assertion that the trial court properly issued a
                 temporary injunction against the Board. (Appellee’s Issue IV). ........15
CONCLUSION ........................................................................................................16
PRAYER ..................................................................................................................16
CERTIFICATE OF COMPLIANCE .......................................................................18
CERTIFICATE OF SERVICE ................................................................................18




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

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

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

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

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

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

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

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

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

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

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




                                                          iii
Statutes

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

Rules

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

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

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

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




                                                              iv
                          CASE NO. 03-13-00370-CV


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


           STATE BOARD FOR EDUCATOR CERTIFICATION,
                           Appellant,

                                        v.

                              ERASMO MONTALVO,
                                   Appellee.


    On Appeal from the 200th Judicial District Court of Travis County, Texas;
        Cause No. D-1-GN-12-002991; Before the Honorable Tim Sulak


                        APPELLANT’S REPLY BRIEF


TO THE HONORABLE THIRD COURT OF APPEALS:

      COMES NOW Appellant, State Board for Educator Certification (Board),

represented by and through the Office of the Texas Attorney General, and the

undersigned Assistant Attorney General, and files its Appellant’s Reply Brief. In

support hereof, the Board respectfully shows the Court the following:

                         I.     STATEMENT OF FACTS

      While Montalvo’s recitation of actual facts is accurate, the Board takes

exception to the way in which those facts are presented as being misleading.
Montalvo imputes conclusions where none have been expressed by either the Board

or the ALJ in their Findings of Fact.

      For example, on page 4 of Appellee’s Brief, he expounds on the fact that VS

appears happy and excited in a video with Montalvo. The ALJ gave no credence to

Montalvo’s argument about this seemingly normal behavior by VS, by referring to

the testimony of the Board’s expert witness, a Licensed Professional Counselor with

experience in the field of abuse. 1 AR 16, 33–35. In her analysis of the evidence,

the ALJ point-blank stated that, based on the testimony of the Board’s expert

witness, she gave no weight to VS’s apparently normal behavior around Montalvo,

including her behavior in the video with Montalvo, or her inconsistent statements

about what happened. 1 AR 53.

      Another example is on page 5 of Appellee’s Brief, in ¶ 7, and again on page

7, in ¶ 10, where Montalvo concludes that the criminal jury acquitted him because

VS was not credible. However, there is no evidence in the administrative record that

the criminal jury found VS lacking in credibility.

      In conclusion, had Montalvo recited the facts as found by the ALJ, instead of

editorializing them and changing their tenor and meaning, the Board would have no

objection. See Tex. R. App. P. 38.1(g).




                                          2
                       II.   ARGUMENT AND AUTHORITIES

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

      Montalvo errs in his argument that the Board lacked authority to sanction him

“in the absence of actual wrongdoing.” Appellee’s Br. at 11. “Actual wrongdoing”

is not necessarily the equivalent of a Code of Ethics violation or one specific,

quantifiable act. What caused the Board to take note of what Montalvo had done

was not just one instance of poor judgment and the subsequent conduct resulting

from that judgment, but instead multiple instances of poor judgment and the resultant

conduct.

      While, for example, there is no bright line rule regarding phone calls between

educators and students, in this case it is not unreasonable for the Board to find that

480 calls—even taking into account that a number of them may have been “dropped”

calls—is inappropriate regardless of content. Nor is it unreasonable for the Board

to find that allowing students into your home to use the Jacuzzi in your master

bathroom—especially in allowing one female student, alone, into your master

bathroom Jacuzzi—is crossing the boundary of an appropriate educator-student

relationship.




                                          3
         In concluding that Montalvo is unworthy to instruct, the Board looked at the

totality of Montalvo’s judgment calls and actions, and concluded that he had crossed

the line and lacks the ability to make the appropriate judgments that educators must

make in order to be role models for students.

         It should be noted that the Board made no attempt to sanction Montalvo for

one call, or two calls, or any number of calls, or after Montalvo had students in his

home one time only. Nor did the Board claim that just one instance of poor judgment

put Montalvo “over the line” into inappropriate conduct as an educator. The Board

instead cited all of these instances as evidence of Montalvo’s deficient judgment and

complained not only of Code of Ethics violations when it originally filed its

administrative complaint, but also pled that he is unworthy to instruct.

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

         Montalvo’s argument that the Board’s reliance on the Marrs 1 case is

misplaced is short-sighted. The Marrs case, relying on the “unworthy to instruct”

language, involves an educator involved in a scheme to fraudulently issue educator

certificates. While it is true that the Marrs Court did not find the phrase “unworthy

to instruct” to be vague “as to the conduct in that case” (Appellee’s Br. at 12), the

opinion does not imply that the phrase is limited to that particular set of



1
    Marrs v. Matthews, 270 S.W. 586 (Tex. Civ. App—Texarkana 1925, writ ref’d).
                                               4
circumstances or others like it. On the contrary, the opinion does justice to the phrase

“unworthy to instruct” by giving an expansive explanation of not only what it means,

but why the phrase cannot be specifically defined. Id. at 588.

         The Board is certainly qualified to determine when the line defining a proper

educator-student relationship is crossed, and sanction accordingly. In fact, educators

themselves are capable of determining when they have crossed that boundary. It is

clearly worrisome to the Board that Montalvo did not recognize that his conduct

(having students use the Jacuzzi in his master bathroom; engaging in tens, if not

hundreds, of phone calls with one particular student) shows major lapses in his

judgment as an educator.

         The fact that the phrase “unworthy to instruct” has no black and white

definition does not indicate lack of accountability and an ability to arbitrarily

sanction. See Appellee’s Br. at 13. The need for more concrete notice of a violation

is much stronger in criminal cases than in non-criminal cases such as this one.

Montalvo cites to the Grayned 2 case for support. However, while Grayned does

expressly state that it is a “basic principle of due process that an enactment is void

for vagueness if its prohibitions are not clearly defined,” Grayned deals with the

potential for a penal sanction. Id. at 108. Here, however, there is no penal sanction

involved. While the loss of a professional certification is serious, it is not the sort of


2
    Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972).
                                                 5
seriousness that involves the potential to be sent to jail or prison, or have a conviction

on one’s criminal record—as in Grayned. And the Grayned opinion goes on to state

that “[c]ondemned to the use of words, we can never expect mathematical certainty

from our language.” Id. at 110. Further, the Court explained that,

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

Id. at 110–11. This is an important point and can be directly related to the “unworthy

to instruct” language in the Board’s rules.

      Various statutes, rules, and the Board’s Disciplinary Policy and Mission

Statement (adopted February 6, 2009) reference the fact that the conduct of

educators is to be regulated by the Board. See Tex. Educ. Code §§ 21.031, .041(7),

.041(8). The Board also has a duty to protect not only schoolchildren but educators.

19 Tex. Admin. Code § 249.5; SBEC Disciplinary Policy and Mission Statement.

See Apps. B and C, respectively. When taken together, the rules, statutes and

Disciplinary Policy put the “unworthy to instruct” language in context. It is worth

repeating that Texas case law is replete with numerous phrases that are similar to




                                            6
“unworthy to instruct” in that they defy exact definition yet pass constitutional

muster. See Appellant’s Br. at 20–21.

      3.     Reply to Appellee’s argument that the Board took Findings of Fact
             “out of context” in rendering its Final Decision and Order.
             (Appellee’s Br. at 15)

      No Findings were taken out of context by the Board because all Findings

relied on by the Board involved Montalvo’s conduct. 1 AR 61-62, or see App. D

(ALJ’s Findings of Fact and Conclusions of Law). In fact, it is Montalvo who took

the Findings out of context. The Board did not revoke Montalvo’s certificate

because, for example, “[d]istrict protocol required that injured students be sent to the

trainer,” or because, “[f]ollowing her injury, VS underwent stretching, rub downs,

ice baths, and whirlpool use under Mr. Montalvo’s direction,” or because of any of

the other Findings of Fact taken individually. See 1 AR 62, 63 (FOF 11, 18), or see

App. D. The Board’s Order expressly states that it is based on seven Findings of

Fact that, when taken together, indicate that Montalvo is unworthy to instruct. See

1 AR 68– 69, or see App. A (Board’s Final Decision and Order).

      Common sense dictates that a male educator inviting a female student (or any

student) to his home to use the master bath Jacuzzi has engaged in conduct no

educator should be engaging in, regardless of whether or not any misconduct

occurred. The same goes for excessive phone calls between an educator and a

student, as here. The fact that the only people who know what the content of those


                                           7
calls were and that they both testified that the calls were not in the furtherance of a

romantic relationship does not mean that the sheer number of calls could not be taken

into account by the Board. But the Board did not rely on just those Findings.

Instead, it relied on the totality of Findings regarding Montalvo’s decisions and

conduct in reaching its conclusion.

      The Board’s Final Decision and Order does not stand for the proposition that

if an educator gives students rubdowns, or assists them in stretching, or engages in

any number of other individual acts as found to have been committed by Montalvo

that they are in danger of losing their certificate. In Montalvo’s case, it was all of

his decisions that, when taken together, are indicative of an educator who lacks

judgment, cannot be a role model for students, and is unworthy to instruct.

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

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

speaking at a school law seminar in 2011, is taken out of context. As Ms. Dover

explained while testifying at the hearing for Montalvo’s request for a temporary

restraining order, her remarks regarding phone calls were not part of any prepared

speech but were in response to a hypothetical question from an audience member to

which she was responding. See 2 RR 53:18–55:6. And, as with all other findings of

fact that Montalvo brings up in his Brief, the phone calls must be seen as part of the



                                          8
broader picture as opposed to Montalvo’s narrowly painted picture that phone calls

alone do not make an educator unworthy to instruct.

      5.     Reply to Montalvo’s section regarding adoption of the Educators’
             Code of Ethics and the lack of statutory cite for “unworthy to
             instruct.” (Appellee’s Br. at 24–25)

      It is merely Montalvo’s opinion that the term “unworthy to instruct” should

be limited to “egregious cases such as fraudulently issuing teaching certificates,” as

in the Marrs case. Appellee’s Br. at 25. The fact that the Board now has in place a

comprehensive Code of Ethics which did not exist at the time that the “unworthy to

instruct” language appeared in statute in no way negates the need for, or legitimacy

of, language to sanction educators when the Board finds that an educator has crossed

the boundary of a proper educator-student relationship despite the lack of a Code of

Ethics violation. Montalvo’s judgments and actions are indicative of that necessity.

For example, the fact that no violation was found in terms of solicitation of a

romantic relationship between Montalvo and VS does not indicate that an excessive

number of calls between an educator and a student is “okay.” Further, the fact that

there was no finding of anything improper going on during students’ visits to

Montalvo’s master bath Jacuzzi, and hence no Code of Ethics violation, does not

mean that such behavior is also “okay.”

      Montalvo is correct that the term “unworthy to instruct” no longer appears in

the Texas Education Code, having been repealed when the Board was formed by the


                                          9
legislature in 1995. The term does, however, exist in the Board’s rules. The Board’s

rules have the force and effect of law. Lewis v. Jacksonville Bldg. & Loan Ass’n,

540 S.W.2d 307, 310 (Tex. 1976) (“Valid rules and regulations promulgated by an

administrative agency acting within its statutory authority have the force and effect

of legislation.”) (citing Texarkana & Fort Smith Ry. Co. v. Hous. Gas & Fuel Co.,

121 Tex. 594, 51 S.W.2d 284 (1932)).

      In conclusion, it is absolutely within the Board’s discretion to determine that

Montalvo’s conduct crossed the line into “inappropriate” regardless of whether or

not a specific ethical standard had been violated, and regardless of whether or not

the term “unworthy to instruct” appears in statute. In other words, the Board has the

authority to make policy determinations and the courts give deference to those

determinations, as long as they are reasonable. See Heritage on the San Gabriel

Homeowners Ass’n v. Tex. Comm’n on Envtl. Quality, 393 S.W.3d 417, 424 (Tex.

App.—Austin 2012, pet. denied) (citing TGS-NOPEC Geophysical Co. v. Combs,

340 S.W.3d 432, 438 (Tex. 2011)).

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

      One of Montalvo’s complaints is that the Board revoked his certificate for

“poor judgment,” when “poor judgment” is not a standard for maintaining one’s

certificate. Appellee’s Br. at 33. Montalvo’s diatribe against the use of “poor

judgment” as a basis for revocation is misplaced. Significantly, the Board’s Final
                                         10
Decision and Order does not reference Montalvo’s “poor judgment” other than by

inference. Instead, the Order itself clearly explains the rationale on which it is based,

which is:

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

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

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

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

I AR 68–69 (Final Decision and Order), or see App. A. It is indeed Montalvo’s poor

judgment which led him to engage in inappropriate conduct with his students in

general, and VS in particular. And, according to the Board’s Final Order, it is

Montalvo’s conduct that is responsible for his certificate revocation. I AR 69, or see

App. A.




                                            11
      Nor, as Montalvo also argues, has the Board revoked his certificate because

of 480 phone calls, or because of his allowing a female student to use the Jacuzzi in

his master bath at home, or because of any other individual Finding of Fact as found

by the ALJ and adopted by the Board. Rather, as the Board has consistently

explained, and as its Final Decision and Order details, it is because the totality of

Montalvo’s judgments and subsequent actions have crossed the boundary into

inappropriate conduct. For that reason, passages cited by Montalvo from the

Whalen 3 case are inapplicable. Appellee’s Br. at 34, 35.

             a.     Why Whalen does not support Montalvo.

      Whalen involved a case where a teacher violated express instructions in

presenting material in a sex education class over the course of several class periods

spanning two days. The Commissioner, although hesitant to affirm the Board of

Trustees’ decision to terminate Whalen’s contract after the first year of a two year

contract, did so. His hesitancy was because, as the passage cited by Montalvo in his

Brief (Appellee’s Br. at 34) says, “one instance of exercising poor judgment will not

necessarily support an action of termination of employment.” Whalen, 1985 TX

Educ. Agency LEXIS 61, at *17.




3
  Whalen v. Rocksprings Indep. Sch. Dist., No. 065-R1B-284, 1985 TX Educ. Agency LEXIS 61,
at *17.
                                           12
      But Montalvo failed to include a later passage from the Whalen Decision

which is applicable to this case:

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

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

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

Id. at 19 (emphasis added). And, while the Whalen Decision also states that the harm

must be significant (Id. at *18), in the present case we have a male coach inviting a

female student, alone, to his home to use the Jacuzzi in his master bathroom;

engaging in hundreds of phone calls, including 80 calls after 10:00 p.m., no matter

how brief they may be; treating her injury himself with ice baths and rubdowns; and

generally engaging in questionable behavior. All of this is evidenced by the Findings

of Fact in the Board’s Final Decision and Order, adopted verbatim from the ALJ’s

Proposal for Decision. I AR 67–69, or see App. A. Not only is the potential for harm

present, as noted in the Whalen decision, but, in considering all that has transpired

for both VS and Montalvo as a result of all of these actions, significant harm can

certainly be considered to have occurred.


                                         13
          While Whalen involves the appeal of a Decision of the Commissioner of

Education rather than the appeal of a state Board decision, the rationale of the

Commissioner’s Decision certainly applies. In a substantial evidence appeal, the

standard is not whether the court agrees with the Board’s decision, or even if the

court believes it is a wrong decision. Rather, the court must affirm the Board’s Final

Decision and Order if it is reasonable. Imperial Am. Res. Fund, Inc. v. R.R. Comm’n,

557 S.W.2d 280, 286 (Tex. 1977); R.R. Comm’n v. Pend Oreille Oil & Gas Co., 817

S.W.2d 36, 41 (Tex. 1991) (“At its core, the substantial evidence rule is a

reasonableness test or a rational basis test.”). Because the Board’s position is

reasonable, the trial court should have affirmed its Final Decision and Order.

          7.     Reply to Montalvo’s section describing the “unworthy to instruct”
                 standard as arbitrary and capricious (Montalvo’s Issue III).

          The Board has briefed this issue in detail in its previously-filed Appellant’s

Brief. However, it is worth emphasizing that Montalvo’s opinion as to when the

standard applies (“when involving extreme and egregious conduct that is not now

articulated in the Code of Ethics”4) is just that, his opinion. While the Code of Ethics

is a comprehensive listing of ethical standards to be adhered to by educators, it

cannot possibly be all-encompassing since it refers to human behavior, which,

potentially, entails an infinite number of possibilities. Again, it is not unreasonable



4
    Appellee’s Br. at 37.
                                            14
for the Board to find that allowing a female student into your master bath Jacuzzi is

not appropriate behavior for a teacher. And that is just one of Montalvo’s behaviors,

based on his judgment or lack thereof, to which the Board took exception in its Final

Decision and Order. All Findings were adopted verbatim from the Proposal for

Decision, with no objection by Montalvo.

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

         The Court did not, in fact, balance the equities when issuing the temporary

injunction against the Board, as Justice Guzman opined in her concurring opinion.

In re State Bd. for Educator Certification, 452 S.W.3d 802, 809 (Tex. 2014)

(Guzman, J., concurring). The Findings of Fact and Conclusions of Law filed by the

trial court following the hearing regarding injunctive relief, while mentioning that

the “competing equities favor granting the injunction,” make no mention of facts

other than the ones affecting Montalvo. RR 5 8–10, or see App. E. In other words,

the Findings of Fact are conclusory only.         The harm or potential harm to

schoolchildren faced with an educator displaying Montalvo’s lack of judgment, is

not mentioned, let alone discussed. Montalvo’s own briefing only mentions the

testimony concerning Montalvo’s experience as an educator, the fact that he was

placed on leave with pay after he was indicted, that he was reinstated after he was



5
    Reporter’s Record
                                          15
acquitted, nothing more. Appellee’s Br. at 40. “Balancing” requires more than just

looking at one side of the equation, and yet, that is all that was done in this case.

Estancias Dall. Corp. v. Schultz, 500 S.W.2d 217, 221 (Tex. Civ. App.—Beaumont

1973, writ ref’d n.r.e.) (quoting 31 Tex. Jur. Nuisances § 35) (“According to the

doctrine of ‘comparative injury’ or ‘balancing of equities’ the court will consider the

injury which may result to the defendant and the public by granting the injunction

as well as the injury to be sustained by the complainant if the writ be denied.”)

(emphasis added); Nueces Cnty. Drainage & Conservation Dist. No. 2 v. Bevly, 519

S.W.2d 938, 948 (Tex. Civ. App.—Corpus Christi 1975, writ ref’d n.r.e.).

                                  CONCLUSION

      The Board’s actions were reasonable: in adopting all Findings of Fact

verbatim, the Board concluded that Montalvo is unworthy to instruct. Under the

substantial evidence standard, the Court must affirm the Board’s Final Decision and

Order as there is substantial evidence in the record to support it.

                                      PRAYER

      For the reasons stated above and in its initial Appellant’s Brief, Appellant

State Board for Educator Certification respectfully prays that this Court reverse the

trial court’s Final Judgment and affirm the Board’s Final Decision and Order

permanently revoking Montalvo’s educator certificate.




                                          16
Respectfully submitted,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

JAMES E. DAVIS
Deputy Attorney General for Civil Litigation

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

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




  17
                      CERTIFICATE OF COMPLIANCE

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

App. P. 9 and the word count of this document is 3,700. The word processing

software used to prepare this filing, and calculate the word count of the document,

is Microsoft Word 2010.

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


                          CERTIFICATE OF SERVICE

      I hereby certify that on July 30, 2015, a true and correct copy of the foregoing

document was served via the Court’s ECF system to all counsel of record:

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

                                       /s/ Ellen M. Sameth
                                       Ellen M. Sameth
                                       Assistant Attorney General




                                         18
                      CASE NO. 03-13-00370-CV


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


       STATE BOARD FOR EDUCATOR CERTIFICATION,
                       Appellant,

                                   v.

                       ERASMO MONTALVO,
                            Appellee.


On Appeal from the 200th Judicial District Court of Travis County, Texas;
    Cause No. D-1-GN-12-002991; Before the Honorable Tim Sulak


                   APPELLANT’S REPLY BRIEF



                          APPENDIX
A. FINAL DECISION AND ORDER

B.   19 TEX. ADMIN. CODE § 249.5

C.   SBEC DISCIPLINARY POLICY AND MISSION STATEMENT

D. ALJ'S FINDINGS OF FACT AND CONCLUSIONS OF LAW

E. TRIAL COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW
                      CASE NO. 03-13-00370-CV


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


       STATE BOARD FOR EDUCATOR CERTIFICATION,
                       Appellant,

                                   V.


                       ERASMO MONTALVO,
                            Appellee.


On Appeal from the 200th Judicial District Court of Travis County, Texas;
    Cause No. D-1-GN-12-00299I; Before the Honorable Tim Sulak



                   APPELLANT'S REPLY BRIEF




                       APPEI{DIX A
                                  soAH DOCKET NO. 701-l l-8468.EC
TEXAS EDUCATION ÀGENCY,                            $       BEFORE THE STATE OF'FICE
EDUCTVIOR CERTIFICATION ANI)                       $
STANDARDS DMSION,                                  $
   Petitioner                                      $
                                                   $
V                                                  $                        OF
                                                   $
ERASMO MONTALVO, JR.,                              $
    Respondent                                     $      ADMINISTRATIVE TIEARINGS

                                   FINAL DECISTON AND ORDER

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


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

nnd 8, as set out below, and aclds Conclusion           of Law 9. All proposed Findings ol Fact            and

Conclusions of L¿rw not specifically adopted herein are hereby denied,

Responclent, a rnale coach, engagetJ in conduct which exceeds the bottltds of the proper edttcator-

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

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

by engaging in approximately 480 phone calls rvith V,S, tltrríng         a.l   ruonth pcriocl, rvith over 80

trl those calls being placcd atler l0:00 p,m. (frinding ol Fact 26)'




                                                                                                            MONTALVO V. SBEC
                                                                                                            0067
Conclusion ol Law        7:


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




Conclusion ot'Law        8:


SBEC is authorized to take dísciplinary action against Respondent's Texas Eclucator Certificatc,

Conclusion of Law 9:

Respondenl's educator certificate should be sanctioned.


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

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


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


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

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

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

trl'that t1¡st to bc cclnduct that may result in pcrnìancnt revocalion of an etlttcrlor's certificate.

i\lf orving a lèrnale studerrt to        use thc. jacuz.z.i in thc master b:ttltroolll      ol his hollre rvhilc no    rlnc:


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




                                                                                                                        MONTALVO V. SBEC
                                                                                                                        0068
a nrale coach giving a t'emale athlete rubdowns and ice baths, täiling to fbllorv district protocol to
send an injured athlete to the trainer is conduct that the SBEC consiclers to cross the bounds     of
the appropriate studenþteacher relationship and ís sanctionable conduct,


Respontlent's actions crossed the bounds        of   an appropriate cducator-student relationship and

show that he is not presently worthy to hotd a'fexas edt¡cator certificate,


NOW, TFIEREFORE, IT IS ORDERED by the Board pursuant to the Texas Education                     Code

Sections 21,031 and 2l.O4l(b)(7) and the Board's nrles promulgated in accordance with           these

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



                                                                       lo-
         L. CAIN, Ed.                                    DATE

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




                                                                                                   MONTALVO V, SBEC
                                                                                                   0069
                     CASE NO. 03-13-00370-cV


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


      STATE BOARD FOR EDUCATOR CERTIFICATION,
                      Appellønt,

                                   Y.


                       ERASMO MONTALVO,
                               Appellee,


On Appeal from the 200th Judicial District Court of Travis County, Texas;
    cause No. D-1-GN-12-002991; Before the Honorable Tim sulak


                   APPELLANT'S REPLY BRIEF




                       APPENDIX B
                                                                                                   Page I




|-' LexisNexis'
1    of 4 DOCUMENTS

                                     TEXAS ADMINISTRATIVE CODE

                                          ,k't{t   ARCIilVE DATA        'È*,1,


    ¡I. ¡I.
              'I.   TI{S DOCUMENT REFLECTS ALL RULES IN EFFECT AS                OF DECEMBER        3 1,
                                                             ¡lr*:r'.
                                                      2008

                             TITLE 19. EDUCATION
              PART 7. STATE BOARD FOR EDUCATOR CERTIFICATION
     CFIAPTER 249. DISCPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED
                                                       CASES
                                 SUBCI{APTER A, GENERAL PROVISIONS

                                            le rAC ç 24e.s (2008)

ç 249.5. Purpose

          The purpose of this chaPter is:
        to protect the safety and welfare of Texas schoolchildren and school personnel;
              (l)
    (2) to ensure educators and applicants are morally fit and worthy to instruct or to super-
vise the youth of the state;
              (3) to regulate and to enforce the standards ofconduct ofeducators and applicants;
    (4) to provide for disciplinary proceedings in conformity with the Texas Government
Code, Chãpter 2001, and the rules of practice and procedure of the State Office of Adminis-
trative Hearings;
              (5) to enforce an educators'code ofethics;
    (6) to fairly and efficiently resolve disciplinary proceedings at the least expense possible
to the parties and the state;
    (7) to promote the development of legal precedents through State Board for Educator
Certification (SBEC) decisions to the end that disciplinary proceedings may be justly re-
solved; and
              (8) to provide for regulation and general administration pursuant to the SBEC's enabling
statutes.
SOURCE: The provisions of this ç 249.5 adopted to be effective March 31,1999,24
TexReg 2304; amended to be effective December 16, 2007,32 TexReg 9112
                      CASE NO. 03-13-00370-CV


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


       STATE BOARD F'OR EDUCATOR CERTIFICATION,
                        Appellant,

                                   v

                       ERASMO MONTALVO,
                            Appellee.


On Appeal from the 200th Judicial District Court of Travis County, Texas;
    Cause No. D-1-GN-12-00299I; Before the Honorable Tim Sulak



                   APPELLANT'S REPLY BRIEF




                       APPENDIX C
SBEC Disciplinary Policy and Mission
Statement
DISCPLINARY POLICY GUIDELINES

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

  (l) protect the safety and welfare of Texas schoolchildren and school personnel;
  (2) ensure educators and applicants are morally fit and worthy to instruct or to
     supervise the youth of the state; and
  (3) fairly and efficiently resolve educator disciplinary proceedings.

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

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

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

General Principles:

   1.   Because the SBEC's primary duty is to safeguard the interests of Texas
        students, educator certification must be considered a privilege and not a
        right.
   2.   SBEC disciplinary sanctions are based on educator conductthat is proved by
        a preponderance of the evidence, without regard to whether there has
   been a criminal conviction, deferred adjudication or other type of
   community supervision, an indictment, or even an arrest. Under the
   Educators' Code of Ethics, an educator may be sanctioned for conduct
   underlying a criminal conviction even if the crime is not subject to sanction
   under the Texas Occupations Code, Chapter 53. An educator may also be
   sanctioned for conduct underlying a criminal conviction even if the conduct
   is not specifically listed in 19 TAC S 249.16, as long as the conduct renders
   the educator unworthy to instruct.
3. Because the SBEC recognizes that an educator's good moral character, as
   defined in 19 TAC ç 249,3, constitutes the essence of the role model that the
   educator represents to students both inside and outside the classroom,
   criminal law, 19 TAC Chapter 247,fhe Educator's Code of Ethics, and 19
   TAC Chapter 249,providing for educator disciplinary proceedings, are
   merely a minimum base line standard for educator conduct. Active
   community supervision, as well as conduct that indicates dishonesty,
   untruthfulness, habitual impairment through drugs or alcohol, abuse or
   neglect of students and minors, including the educator's own children, or
   reckless endangerment of the safety of others, may demonstrate that the
   person lacks good moral character, is a negative role model to students, and
    does not possess the moral fitness necessary to be a certified educator.
4. "L;nworthy to instruct or to supervise the youth of this state," which serves
    as a basis for sanctions under 19 TAC ç 249.15(b) (2), is a broad concept
   that is not limited to the specific criminal convictions that are described in
    Texas Education Code (TEC) S$ 21.058 and 21.060. The SBEC 19 TAC $
    249.3(45) definition of "the determination that a person is unfit to hold a
    certificate under the TEC, Chapter 21, Subchapter B, or to be allowed on a
    school campus under the auspices of an educator preparation program"
    predates the adoption of TEC $$ 21.058 and 27.060, and is based upon the
    TEC, Chapter 21, Subchapter B grant of authority to the SBEC to "regulate
    and oversee all aspects of the certiflrcation, continuing education, and
    standards of conduct of public school educators." As a Texas Court of Civil
    Appeals ruled in the seminal case of Marrs v. Matthews,270 S.W. 586
    (1925), "unworthy to instruct" "means the lack of 'worth'; the absence of
    those moral and mental qualities which are required to enable one to render
    the service essential to the accomplishment of the object which the law has
    in view." Therefore, the moral htness of a person to instruct the youth of this
    state must be determined from an examination of all relçvant cQnduct, is not
    limited to conducf thatoccurs while performing the duties of a professional
    educator, and is not limited to conduct that constitutes a criminal violation or
    results in a criminal conviction.
   5.   Educators have positions of authority, have extensive access to students
        when no other adults (or even other students, in some cases) are present, and
        have access to confidential information that could provide a unique
        opportunity to exploit student vulnerabilities. Therefore, educators must
        clearly understand the boundaries of the educator-student relationship that
        they are trusted not to cross. The SBEC considers any violation of that trust,
        such as soliciting or engaging in a romantic or sexual relationship with any
        student or minor, to be conduct IhaT may result in permanent revocation of
        an educator's certificate.
   6.   The SBEC recognizes and considers evidence of rehabilitation with regard
        to educator conduct that could result in sanction, denial of a certification
        application, or denial of an application for reinstatement of a certiftcate, but
        must also consider the nature and seriousness of prior cenduct, the potential
        danger the conduct poses to the health and welfare of students, the effect of
        the prior conduct upon any victims of the cenduct, whether sufflrcient time
        has passed and sufficient evidence is presented to demonstrate that the
        educator or applicant has been rehabilitated from the prior conduct, and the
        effect of the conduct upon the educator's good moral character and ability to
        be a proper role model for students.

Mission Statement     (Buck to top)


Ensure the highest level of educator preparation to promote student achievement
and to ensure the safety and welfare of Texas school children
Adopted February 6, 2009
                     CASE NO. 03-13-00370-CV


                 IN THE COURT OF APPEALS
       F'OR THE THIRD DISTRICT OF TEXAS AT AUSTIN



       STATE BOARD FOR EDUCATOR CERTIFICATION,
                       Appellant,

                                   v

                       ERASMO MONTALVO,
                               Appellee.


On Appeal from the 200th Judicial District Court of Travis County, Texas;
    Cause No. D-1-GN-12-002991; Before the Honorable Tim Sulak



                   APPELLANT'S REPLY BRIEF




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




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

Mr. Morrtalvo's telophone calls rvith V,S, did not violate lhe cited Coc]e of Ethiss provisions      and

should not subject him to sa¡lclion.


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

       Ir is undisputc<l tlrat Mr, Motrt¿lvo allowed students, including V,S,, to use his Jaottz:¿i'
\vhile there is insulficient evidence t0 suPport a determination that Mr' Montqlvo scxunlly
assalhed V.S, wNìe she wa^s in lús homc to use the Jacuzai, Mr. Montalvo unquestionably
exercisetl bacl juclgmsnlin openitg his masler baú to slttdents, ancl cspecially to one fçrnale
                                                                                   such a poor
stuclcnt alone - evcn if Mr, Montalvo's wifc was at home at the time. However,
decision did not vlolate the cited Cocle of Ethics provisions by advqscly
                                                                            affecting studertts,

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

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


        6,      SurnmarY and Rcçommendation


        staff has not pl,oven     il.s all€gations   by a propon<Jorance of the evidence, Therelbre,   the

ALJ reoonrmelrds no sanction in this case.


                                         III.   F'INDINGS OÉ'FACT

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

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




                                                                                            MONTALVO V. SBEC
                                                                                            0061
SO¡IH DOCKI)'I' NO, 701-l l-8468.8C                        PROPOSAL FOR DECISION                       PAGC 53



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

3           'lle  notice of hearjng contni¡red o statgrnorlt o{'the tirne, placo, and natul'c olthc hcaring;
            a statcment of ths le¿al authority and jurisdiction under which thc hearing wus to bc lrold;
            a ref'erence to the porticula¡ sectio¡rs ofthe stotutes end n¡lcs involvedi und a short, plain
            statçment of tho matters asset"ted,

4           Thc hearin                                                                     Kilgore at (he   State
            Oftrce of                                                                      Clements Building'
            300 West     I                                                                 esented bY attorlìeYs
            Richard     J,                                                                  aPPcal'cd and was
            rcpresented þy attorneys Malk Robinett arrd Coley Tanncr.                    The record closed on
            Marclt 9, 20L2,wilhthe parLics' subnriesion of reply brieTs,

5.           2008,
            ln                                        k and fielcl soach at the Rio orande oity High school
               pà
            (HS),                                     Llonsolidatcd Independent School District (CISD)' He
            wns'also                                  oeh at a Cf SD elarnentary school.


6           'I1at same year,       StuClerl((also rcfenccl to as "V.S,"), a tbrnale senior rtuder the age of
                                               I
            18, w'a^t ou ihe ìrigìr school lrsck tcanl coachçd by Mr' Montalvo.

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


I           While at the Dorura Inget, V.S, met with a collego recruiter and was offbred a traok              dnd

            field schola¡sllip to attond oolltrge irr Coqrns Clrtisti thc tbllowing yeal

9           V,S, ìqjurçcl hor hamstrirrg al the Donn¡r track meet and did not compstc'

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

ll,         District l)ïotocol reqrrirccl that injule$ stuclents be sont to the traincr,

12,         Assistant Coach l,inda t,r¡ tolcl V,S. to go to tbe tlaincr,

1.3,        Parents of injured athleles do trut have to agree to let their children go fo tlre trainer'

    14,     V,S, did not visit the trrtiner ahout' her injuly,

    15.     V,S,'s tnothsr took V,S, to Mcxico for shots to lreat lier injury'

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




                                                                                                     MONTALVO V. SBEC
                                                                                                     0062
so^H DocxET NO. 701-ll-8468,DC                              PROI¡OSÂL FOR DECISTON                        PACE 54



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




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


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

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

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

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

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

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

25,     There is insuff'rcient evidonce üo suppo¡t a fÌnding thal Mr. Montalvo sexually abused or
        assaulted V,S, in the field house'
                                                                           jn approxitnately 480 phone
26,     Fronr February through June 2008, Mr, Montalvo ongagcd
        oalls with Stutlerf I , with ovet 80 t'¡f the calls placed ofter 10:00 p'm'

11      The phole calls were atrout V,S.'s track performançe ¡¡nd elnotional issues.
                                                                                          calls did lle
        rot ;late to or coustítute û   sexuú¡l or xrrnanlie solicltqtio¡r or rch¡tionship betweeu
        Mr, Montalvo and V,S,

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

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

30,     'fhere    i¡rsnfticieut eviclonce 1<r suppoÌt a tinding that Mr, Moutalvo ilrtentionally,
                           is
         knowingly, or reckJesSly engaged in physical mistrealment, negleot, tlr abuse of V.S.

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




                                                                                                     MONTALVO V. SBEC
                                                                                                     0063
soAll Doct(tT    NO. 701-lI-8468.nC                   PIIOPOS'{L IOR ÞECISION                   PAGE 55



JZ,      At some point tluring the 2008-2009 acadenric year, V,S, told a c<¡nnselor a[ her college
                                                                        jn the spring of 2008'
         ancl her farnily that Mr, Moutalvo had scxualty assnultecl her


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

                                     IV,   CONCI,UÍIIONS Oil LAW


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

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

         Proper nncl timely notioe of the henring was provìded to lvfr, Montaivo' Tex'
                                                                                       Gov't Code
3.
         ch. 2001.

4,       Staff lrad thc btlxler¡ of ploof'

         SI3EC muy tnke disoiplinary oction agaiust an eduoator who hos
                                                                          violatod the Eduoator's
5.                                                                   youlh of tlús state' I 9 Tcx'
         Code of Éthi., o, is t nwoittty to inslïct or superviso the
         Admin, Co<le     $   249,15(bxz) attd (3)'

6.       'lhe foregoitig Finclings of Iast do not support conclusions thatMr, Mont¿lvo violated
         Standar.ds S,Z, ¡lll-"ài-¡,0 oi tft" Educarors' Code of Ethics, 19
                                                                             Tex' Admin' Co<le
         $  24?,2(bX3XIl), (E), and (F) [now $ 247'2(3XB), (E)' and (If)]'
                                                                                                 a person
         The folegoing Fiudings of lfacl do not stlpport a conclusion that Mr' Montalvo
                                                                                        is
1,
         unrvorthy 1o ínstruct or supet'vise tho youth of this state'
                                                                                           Educator
I        sBEC is nqt authodzecl [0 (ake disciptinary action agaiust lì.espotrdeut's Texa's
         Certificate,


         SIGNED NlaY 1,2012,



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




                                                                                               MONTALVO V. SBEC
                                                                                               0064
                      CASE NO. 03-13-00370-CV


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


       STATE BOARD FOR EDUCATOR CERTIFICATION,
                       Appellant,

                                   v

                       ERASMO MONTALVO,
                               Appellee.



On Appeal from the 200th Judicial District Court of Travis Cqunty, Texas;
    Cause No. D-1-GN-12-002991; Before the Honorable Tim Sulak



                   APPELLANT'S REPLY BRIEF




                       APPENDIX E
                                                                                   Filed Ín The Digtrict Court
                                                                                    of Travís County, Texas

                                                                                        I'IAY 2   1    i3
                                        CAUSE NO. D-1-GN-12-002991

ERASMO MONTALVO,                                  $      IN THE DISTRICT COI.JRT OF
        Platntffi                                 $
                                                  $
v                                                 $      TRAVIS COUNTY, TEXAS
                                                  $
THE STATE BOARD FOR                               $
EDUCATOR CERTIFICATION,                           $
        Defendant.                                $      2OOTH   JUDICIAL DISTRICT


                    FINDINGS OF     FAg      AND CONqLUS.IONS OF LAW


    The State Board for Educator Certification, Defendant, has requested Findings of Fact and

    Conclusions of Law pursuant to Rule 296 of the Rules of        Civil Procedure regarding that part

    of the Judgment in this case granting Plaintiff s request for a permanent   injunction. In

    accordance with Rule 296, the Court enters the following Findings and Conclusions. To the

    extent that any fïnding    of fact may be construed as a conclusion of law, the Court hereby

    adopts   it   as such, Conespondingly, to the extent that any conclusion      of law   çonstitutes a

    finding of fact, the Court adopts it as such,


                                           FINDINOS OF FACT


I       Erasmo Montalvo, Plaintiff, hæ shown by a preponderance of the evidence, that he              will

         be ineparably harmed      if   a permanent injunction is not issued prohibiting the Defendant

         State Board for Educator Certifrcation from treating as revoked or revoking his educator

         certificate based on the facts and allegations relied on by Defendant in SOAH dooket No'

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

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

     case, the harm   to hím is imminent, It is probable that the Defendant will file a Notice of

     Appeal, claim that its Notice automatically supersedes the injunction, and represent that

     Plaintiff s educator certificate is revoked during the pendency of the appeal, (which may

     involve an indefinite extended period of time), dr:ring which Plaintiff s ability to obtain

     employment consistent with his experienc€, training, and education, would likely be

     significantly adversely affected.

3    The competing equities favor granting the injunotion'


                                    CONCLU,SION,S OF     LAW

     The educator certificate of Erasmo Montalvo, Plaintiff, was wrongfully revoked by

     Defendant State Board for Educator Certification, because the Boa¡d's decision to do so

     was:

         a,   Not supported by substantial evidence;

         b.   Arbitrary and capricious; and

         c.   Characteùzed by a clearly unwarranted exercise of discretion.

 I   Because the Board's decision was not supported by substantial evidence to the prejudice

     of the Plaintiff, the Court is authorized to      reverse the Boæd's decision. Gov't Code

     $2001.174(2XE).

 J   Because the Board's decision was arbitrary and capricious, the Çourt is authorized to

     reverse the Board's decision, Gov't Code $2001.174(2XF).

 4   Because the Board's deoisíon was characterized        by a clearly unwa:ranted exercise of

     discretion, the Court     is   authorÍzed   to reve¡se the Board's   decision' Gov't Code

     $2001,174(2XF).

                                                 2


                                                                9
5,   If   Defendant State Board for Educator Certifïcation          is not enjoined from treating as

     revoked or revoking Plaintiffls educator certificate during the pendency of any appeal

     from the Judgment reversing its action, Plaintiff will suffer harm for which he has no

     adequate remedy.

6.   Under the oircumstances of this case, a permanent injunction is appropriate'

?.   Rule 24,2(3) of the Texas Rules of Appellate Procedure authorizes the trial court to

     decline to permit the judgment to be superseded        if Plaintiff   posts the security ordered by


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

     in propertY.


     Signedonthe      {Ourof         f"tfi          ,2013'


                                                          TIM   S




                                                5



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