                                                                                                ACCEPTED
                                                                                            03-13-00370-CV
                                                                                                    5055113
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                       4/28/2015 8:22:12 AM
                                                                                          JEFFREY D. KYLE
                                                                                                     CLERK
                                   CASE NO. 03-13-00370-CV

                                                              FILED IN
                                                       3rd COURT OF APPEALS
                              IN THE COURT OF APPEALS      AUSTIN, TEXAS
                 FOR THE     THIRD DISTRICT OF TEXAS AT4/28/2015
                                                        AUSTIN   8:22:12 AM
                                                         JEFFREY D. KYLE
                                                               Clerk

          STATE BOARD FOR EDUCATOR CERTIFICATION and
     MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
                     CAPACITY ONLY,
                           Appellant,

                                             v.

                                    ERASMO MONTALVO,
                                         Appellee.


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


                                     APPELLANT’S BRIEF


KEN PAXTON                                  ELLEN M. SAMETH
Attorney General of Texas                   Assistant Attorney General
                                            State Bar No. 17555550
CHARLES E. ROY                              ADMINISTRATIVE LAW DIVISION
First Assistant Attorney General            OFFICE OF THE TEXAS ATTORNEY GENERAL
                                            P. O. Box 12548
JAMES E. DAVIS                              Austin, Texas 78711-2548
Deputy, Attorney General for Civil          Telephone: (512) 936-1838
Litigation                                  Facsimile: (512) 457-4608
                                            E-mail: ellen.sameth@texasattorneygeneral.gov
DAVID A. TALBOT, JR
Chief, Administrative Law Division          Attorney for Appellant, State Board for
                                            Educator Certification
April 27, 2015
                  IDENTITIES OF PARTIES AND COUNSEL


PARTIES TO THE TRIAL COURT’S ORDER:

Plaintiff/Appellant:        State Board for Educator Certification and Michael
Berry, the Acting Chief Executive Officer of the State Board for Educator
Certification, in his Official Capacity Only1

Defendant/Appellee:         Erasmo Montalvo

COUNSEL:

For Appellant, State Board for Educator Certification:

              Ellen M. Sameth
              Assistant Attorney General
              State Bar No. 17555550
              OFFICE OF THE TEXAS ATTORNEY GENERAL
              ADMINISTRATIVE LAW DIVISION
              P.O. Box 12548
              Austin, TX 78711-2548
              Telephone: (512) 936-1838
              Facsimile: (512) 457-4608
              Email: ellen.sameth@texasattorneygeneral.gov

For Appellee, Erasmo Montalvo:

              Mark W. Robinett
              State Bar No. 17083600
              BRIM, ARNETT, ROBINETT,
              CONNERS & MCCORMICK, P.C.
              2525 Wallingwood Drive, Bldg. 14
              Austin, Texas 78746
              Telephone: (512) 328-0048, x110
              Facsimile: (512) 328-4814
              E-mail: mrobinett@brimarnett.com

1
 Michael Berry was released as a Defendant by Agreed Order dated March 28, 2013. See App.
C.
                                            ii
                                           TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ........................................................ ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES......................................................................................v
STATEMENT OF THE CASE .............................................................................. viii
REQUEST FOR ORAL ARGUMENT .....................................................................x
ISSUES PRESENTED............................................................................................. xi
STATEMENT OF FACTS ..................................................................................... xii
SUMMARY OF THE ARGUMENT ........................................................................2
ARGUMENT & AUTHORITIES .............................................................................3
ISSUE I. .....................................................................................................................4
        The trial court erred in failing to find substantial evidence in the
        administrative record to support the Board’s Final Decision and Order. .........4
                   A. The Board has authority to issue sanctions without Code of Ethics
                      violations. ........................................................................................4
                   B. The ALJ misinterpreted and misapplied the standard of “unworthy
                      to instruct.”......................................................................................5
                         1. The Board requires conduct to support a sanction, it does not
                              require Code of Ethics violations. .........................................5
ISSUE II. ....................................................................................................................8
        The Board properly amended the Proposal for Decision in Compliance with
        the Administrative Procedure Act.....................................................................8
                   A. The Board properly amended the Proposal for Decision to comport
                      with the findings of fact. ...............................................................8
                             1. The ALJ’s analysis supports finding poor judgment by
                                Montalvo. ...............................................................................9
                             2. The Board’s Order is not arbitrary or capricious. ................10
                             3. The Board’s interpretation of its rules is to be given
                                deference. .............................................................................12
                             4. The Board properly used the findings of fact to conclude that
                                Montalvo is unworthy to instruct.........................................13


                                                              iii
ISSUE III..................................................................................................................16
        The Board’s standard of “unworthy to instruct” is not unconstitutionally
        vague ...............................................................................................................16
                   A. The meaning and history of “unworthy to instruct.”.....................16
                            1. The “unworthy to instruct” language has been a part of
                               educator parlance since at least 1925...................................16
                            2. The “unworthy to instruct” standard, and analogous
                               standards, have been upheld in case law. ............................18
                   B. “Unworthy to instruct” applies to Montalvo despite the lack of
                      other disciplinary violations..........................................................22
ISSUE IV. ................................................................................................................24
     The trial court abused its discretion in issuing a permanent injunction. .......24
CONCLUSION ........................................................................................................25
PRAYER ..................................................................................................................26
CERTIFICATE OF COMPLIANCE .......................................................................27
CERTIFICATE OF SERVICE ................................................................................28




                                                             iv
                                   INDEX OF AUTHORITIES

Cases

Bexar Metro. Water Dist. v. Tex. Comm'n on Envtl. Quality,
  185 S.W.3d 546 (Tex. App.—Austin 2006, pet. denied) .............................. 12, 13

Brantley v. Tex. Alcoholic Beverage Comm’n.,
  1 S.W.3d 343 (Tex. App—Texarkana 1999, no pet.) ............................................3

Dodd v. Meno,
 870 S.W.2d 4 (Tex. 1994) ....................................................................................12

Gerst v. Nixon,
 411 S.W.2d 350 (Tex. 1966) ..................................................................................3

Gomez v. Tex. Educ. Agency,
 354 S.W.3d 905 (Tex. App.–Austin 2011, pet. denied) .......................................11

In re Gamble,
  71 S.W.3d 313 (Tex. 2002....................................................................................24

In re State Bd. for Educator Certification,
  No. 13-0537, 2014 Tex. LEXIS 1208; (Tex. December 19, 2014).... ix, 14, 15, 24

In re State Bd. of Educator Certification,
  411 S.W.3d 576 (Tex. App.—Austin 2013, orig. proceeding) ..................... ix, viii

Jordan v. State Bd. of Ins.,
  334 S.W. 2d 278 (Tex. 1960) ........................................................................ 20, 21

Key Western Life Ins. Co. v. State Board of Insurance,
 350 S.W.2d 839 (1961).........................................................................................20

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

Martinez v. Tex. State Bd. of Med. Exam’rs,
 476 S.W.2d 400 (Tex. Civ. App.—San Antonio 1972, writ ref’d n.r.e.) .............20

                                                       v
McHaney v. Tex. Comm'n on Envtl. Quality,
 2015 Tex. App. LEXIS 1903 (Tex. App.— Austin Feb. 27, 2015, no pet.)
 (mem.op.)..........................................................................................................3, 24

R.R. Comm'n v. Torch Operating Co.,
  912 S.W.2d 790 (Tex. 1995) ..................................................................................4

Rodriguez v. Serv. Lloyds Ins. Co.,
 997 S.W.2d 248 (Tex. 1999) ......................................................................... 12, 13

State Bd. for Educator Certification v. Montalvo,
  No. 03-12-00723-CV, 2013 Tex. App. LEXIS 4389 (Tex. App.—Austin April 3,
  2013, no pet.) (mem. op.) ................................................................................... viii

Storey v. Cent. Hide & Rendering Co.,
  226 S.W.2d 615 (Tex. 1950) ................................................................................24

Tex. Alcoholic Beverage Comm’n. v. Sanchez,
  96 S.W.3d 483 (Tex. App.—Austin 2002, no pet.)................................................3

Tex. Alcoholic Beverage Comm’n. v. Sierra,
  784 S.W.2d 359 (Tex. 1990) ..................................................................................3

Tex. Health Facilities Comm'n v. Charter Med.–Dall., Inc.,
  665 S.W.2d 446 (Tex. 1984) ..................................................................................3

Tex. State Bd. of Dental Exam’rs v. Sizemore,
  759 S.W.2d 114 (Tex. 1988) ..............................................................................3, 4

TGS NOPEC Geophysical Co. v. Combs,
 340 S.W.3d 432 (Tex. 2011) ................................................................................11

Triantaphyllis v. Gamble,
  93 S.W.3d 398 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) ................24

Vista Healthcare, Inc. v. Tex. Mut. Ins. Co.,
  324 S.W.3d 264 (Tex. App.—Austin 2010, pet. denied) .....................................20

Zimmer US, Inc., v. Combs,
  368 S.W.3d 579 (Tex. App.—Austin 2012, no pet.)............................................13
                                                           vi
Statutes

Tex. Educ. Code
 § 13.046 ............................................................................................................... 18
 § 13.046(a)(2) .......................................................................................................18
 § 21.035 ................................................................................................................ xi
 § 21.041(7), (8); 19 .................................................................................................5
 §§ 21.031(a), .041(b)(1)(7)(8) ..............................................................................23
 §§ 21.031(a); 21.041(b)(1)(7).................................................................................4
 § 21.041(7) (West 2012).........................................................................................3

Tex. Gov’t Code
 § 2001.058(e) ..........................................................................................................9
 § 2001.058(e)(1) ...............................................................................................9, 26
 § 2001.175(e) ..........................................................................................................4


Other Authorities

   74th Leg., R.S. ch. 260, § 58(1), 2003 Tex. Gen. Laws 2498 ..............................18

   SBEC Disciplinary Policy ............................................................................. 21, 25

   Tex. Rev. Civ. Statutes 1911, art. 2884 [2814] ...................................................18

   Tex. Rev. Civ. Statutes art. 2814 ............................................................................5


Rules

19 Tex. Admin. Code
  § 247 .......................................................................................................................7
  § 249 .......................................................................................................................7
  § 249.15 ................................................................................................................17
  § 249.15(a), (b)(3) ..................................................................................................5
  § 249.15(b)(2) ................................................................................... xi, 2, 5, 17, 22
  § 249.3(45)............................................................................................................17
  § 249.5 ..............................................................................................................4, 21
  §§ 249.15(a)(4) .....................................................................................................17
  §§ 249.3(59)............................................................................................................2

                                                              vii
                            STATEMENT OF THE CASE

Trial Court Disposition:            The trial court issued a Judgment reversing the
                                    Board’s Final Decision and Order and issuing a
                                    permanent injunction against the Board. CR2 3, or
                                    see App. A.

Trial Court:                        200th District Court, Travis County, Texas, before
                                    the Honorable Tim Sulak.

Course of Proceedings:              The Board issued a Final Decision and Order on
                                    August 10, 2012. 1 AR 67, or see App. B.

                                    A timely motion for rehearing was filed and
                                    overruled by operation of law.

                                    On September 25, 2012, Montalvo filed an
                                    Original Petition for Temporary Restraining Order,
                                    Temporary Injunction and Permanent Injunction.
                                    The trial court issued both a temporary restraining
                                    order and temporary injunction. Following the
                                    filing of an interlocutory appeal, this Court
                                    reversed and dissolved the temporary injunction
                                    for lack of a trial setting in the order. State Bd. for
                                    Educator Certification v. Montalvo, No. 03-12-
                                    00723-CV, 2013 Tex. App. LEXIS 4389 (Tex.
                                    App.—Austin April 3, 2013, no pet.) (mem. op.).

                                    On March 28, 2013, the trial court issued an
                                    Agreed Order Dismissing Michael Berry as a
                                    defendant. See App. C.

                                    On April 29, 2013, the trial court issued its
                                    Judgment reversing the Board’s Order and issuing
2
   “CR” refers to the Clerk’s Record. The number following refers to the page number. “AR”
refers to the Administrative Record as this matter involved administrative proceedings at the
agency level. The Administrative Record consists of nine volumes. The Administrative Record
will be cited as, e.g., 2 AR *, where “2" refers to the volume and “*” represents a page number
within the given volume. “FOF” and “COL” refer to findings of fact and conclusions of law,
respectively.
                                             viii
a permanent injunction (effective until a ruling on
this appeal) against the Board, prohibiting it from
treating Montalvo’s educator certificate as
revoked, revoking his certificate, or superseding
the court’s Judgment following payment of a bond
by Montalvo, should the Board appeal.

The Board filed a Petition for Writ of Mandamus
and a Motion for Temporary Relief, both of which
the Third Court of Appeals denied. In re State Bd.
of Educator Certification, 411 S.W.3d 576 (Tex.
App.—Austin 2013, orig. proceeding).

The instant appeal was abated while the Board
sought relief in the Texas Supreme Court by filing
a Petition for Writ of Mandamus. The Supreme
Court denied relief. In re State Bd. for Educator
Certification, No. 13-0537, 2014 Tex. LEXIS
1208, (Tex. Dec. 19, 2014).




        ix
                      REQUEST FOR ORAL ARGUMENT

      Pursuant to Rule 75, Texas Rules of Appellate Procedure, Appellant, State

Board for Educator Certification, requests oral argument in this case. Because the

issues involved concern the Board’s interpretation and application of a principle

central to its authority to regulate educators, the Board believes that oral argument

will assist the Court in its analysis and resolution of this case.




                                            x
                        ISSUES PRESENTED

                               ISSUE I.

     The trial court erred in failing to find substantial evidence in the
administrative record to support the Board’s Final Decision and Order.

                               ISSUE II.

      The Board properly amended the Proposal for Decision in
        compliance with the Administrative Procedure Act.

                               ISSUE III.

        The Board’s standard of “unworthy to instruct” is not
                      unconstitutionally vague.

                               ISSUE IV.

The trial court abused its discretion in issuing a permanent injunction.




                                   xi
                                 STATEMENT OF FACTS

       Erasmo Montalvo, Appellee, holds an educator certificate. Montalvo was

employed as a middle school teacher and served as a track and field coach at the

high school in the Rio Grande City Consolidated Independent School District at

the time the disciplinary case against him arose. 1 AR 62 (FOF #5), or see App. D.

VS was a female senior high school student, under the age of 18, and an athlete on

the track team, coached by Montalvo. 1 AR 62 (FOF #6). The Texas Education

Agency (TEA), as the administrative arm of the Board, (see Tex. Educ. Code

§ 21.035,3) opened a disciplinary complaint against Montalvo, and filed its

Original Petition with the State Office of Administrative Hearings on August 2,

2011. In its Original Petition, TEA alleged that Montalvo is unworthy to instruct

or supervise the youth of this State (hereinafter “unworthy to instruct”), as well as

four violations of the Educators’ Code of Ethics. 2 AR 75. Being “unworthy to

instruct” is not a Code of Ethics violation but is a separate finding that the Board

may make against an educator regardless of whether there are violations of the

Code of Ethics. Upon finding that an educator is unworthy to instruct, the Board

has authority to sanction the educator’s certificate, as it did in Montalvo’s case.

See 1 AR 67; 19 Tex. Admin. Code § 249.15(b)(2), attached and incorporated

herein as App. E.

3
 All references to statutes and rules refer to those in effect at the time of the conduct made the
basis of the underlying administrative proceeding.
                                                 xii
      Montalvo’s specific conduct alleged by TEA includes: allowing VS, both

alone and with other students, to use the Jacuzzi in the master bath of his home;

asking VS lie on the bed in his master bedroom so he could massage her injured

leg; engaging in sexual relations with VS on school property; exchanging over 400

phone calls with VS, including many late at night; and, engaging in inappropriate

sexual contact with VS. 2 AR 73–75. In October of 2009, after hearing from VS

what had occurred, her college counselor filed a complaint with the Starr County

District Attorney’s Office, which indicted Montalvo. Following a trial for sexual

assault, Montalvo was acquitted. I AR 64 (FOF #33), or see App. D. Between the

time that the criminal complaint was filed and the time that Montalvo was found

not guilty, he was on paid administrative leave with the school district. 1 AR 43.

Following the verdict Montalvo was allowed to resume his duties with the school

district. 1AR 43.

      The Administrative Law Judge found that Montalvo had not committed any

of the alleged Code of Ethics violations, was not unworthy to instruct, and that the

Board was not authorized to sanction him. 1 AR 64 (COL #6–8), or see App. D.

      The Board issued its Final Decision and Order on August 10, 2012, revoking

Montalvo’s educator certificate. 1 AR 68, or see App. B. In doing so, the Board




                                        xiii
adopted all thirty-three Findings of Fact in the PFD4 without change. Of the eight

Conclusions of Law, the Board modified two, and added a ninth.

       Montalvo sought injunctive relief and judicial review of the Board’s Final

Decision and Order. On September 25, 2012, the trial court issued an ex parte

Temporary Restraining Order and, on October 9, 2012, following a hearing, a

Temporary Injunction. CR 96, 113.

       The temporary injunction was overturned following an interlocutory appeal

by the Board, because the injunction was lacking a date for a trial on the merits.

After the trial on the merits, the trial court reversed the Board’s Final Decision and

Order, and issued a permanent injunction barring the Board from treating

Montalvo’s educator certificate as having been revoked.                 See App. A. The

injunction is to remain in effect pending the appellate court’s ruling on the Board’s

appeal.




4
 Proposal for Decision issued by an Administrative Law Judge following a contested hearing
before the State Office of Administrative Hearings (SOAH).
                                             xiv
                                CASE NO. 03-13-00370-CV


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


          STATE BOARD FOR EDUCATOR CERTIFICATION and
     MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
                     CAPACITY ONLY,
                           Appellant,

                                               v.

                                 ERASMO MONTALVO,
                                      Appellee.


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


                                  APPELLANT’S BRIEF


TO THE HONORABLE THIRD COURT OF APPEALS:

      The trial court erred in reversing Appellant State Board for Educator

Certification’s (Board) Final Decision and Order, which revoked Appellee Erasmo

Montalvo’s (Montalvo) educator certificate after finding that it is not supported by

substantial evidence, and is arbitrary and capricious. Further, the trial court erred in

issuing a permanent injunction without balancing the equities. Accordingly, this



                                           1
Court should reverse the Judgment of the trial court, and affirm the Board’s Final

Decision and Order.

                      SUMMARY OF THE ARGUMENT

      There is substantial evidence in the record to support the Board’s Final

Decision and Order, which found that Montalvo is unworthy to instruct. In its

pleadings before SOAH, the Board alleged that Montalvo is not only unworthy to

instruct, but also violated four standards contained in the Educators’ Code of

Ethics, as well as other standards contained in the Board’s rules. 2 AR 75; see 19

Tex. Admin. Code chs. 247, 249. The ALJ did not find rule violations, or that

Montalvo is unworthy to instruct. 1 AR 64 (COL #6–7), or see App. D. The

Board adopted the ALJ’s findings of fact without changes. 1 AR 67. The Board

further determined that, based solely on Montalvo’s conduct as found by the ALJ in

FOF #11, 14, 18, 20, 22, 23, and 26, and Board standards, policies, and prior

decisions, Montalvo is unworthy to instruct or supervise the youth of this state. 1

AR 68, or see App. A; 1 AR 62–63 or see App. D The Board has authority to find

an educator unworthy to instruct based on conduct.         19 Tex. Admin. Code

§§ 249.3(59), .15(b)(2), or see Apps. E, F.

      Furthermore, the “unworthy to instruct” standard is not unconstitutionally

vague so as to deprive Montalvo of due process, and has passed muster with Texas




                                          2
appellate courts.   Marrs v. Matthews, 270 S.W. 586, 589 (Tex. Civ. App.—

Texarkana 1925, writ ref’d).

                       ARGUMENT & AUTHORITIES

                           STANDARD OF REVIEW

      Review of disciplinary decisions of the Board proceeds under the APA and

the standard of review is that of substantial evidence. Tex. Educ. Code § 21.041(7)

(West 2012). Under that standard the question for the reviewing court is the

reasonableness of the Board’s Order, not its correctness. Tex. Health Facilities

Comm'n v. Charter Med.–Dall., Inc., 665 S.W.2d 446, 452–453 (Tex. 1984); Tex.

Alcoholic Beverage Comm’n. v. Sierra, 784 S.W.2d 359, 360 (Tex. 1990);

Brantley v. Tex. Alcoholic Beverage Comm’n. 1 S.W.3d 343, 347 (Tex. App—

Texarkana 1999, no pet.); Tex. Alcoholic Beverage Comm’n. v. Sanchez, 96

S.W.3d 483, 489 (Tex. App.—Austin 2002, no pet.). The reviewing court cannot

substitute its own judgment for that of the Board. Tex. State Bd. of Dental Exam’rs

v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988). “The true test is not whether the

agency reached the correct conclusion, but whether some reasonable basis exists in

the record for the action taken by the agency.” Charter Med.-Dall., Inc., 665

S.W.2d at 452 (citing Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex. 1966)); McHaney

v. Tex. Comm'n on Envtl. Quality, 2015 Tex. App. LEXIS 1903 (Tex. App.—

Austin Feb. 27, 2015, no pet.) (mem.op.) (“We must sustain the agency's action if


                                        3
it is supported by substantial evidence, meaning that the evidence is such that

reasonable minds could have reached the conclusion that the agency must have

reached in order to justify its action.”). Further, the administrative order is given

deference because of the agency’s expertise with the subject matter. R.R. Comm'n

v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995).

       In applying the substantial evidence standard, there is a presumption that the

agency’s order is supported by substantial evidence in the record, and the burden is

on the one challenging that order to show that it is not. Sizemore, 759 S.W.2d at

116.    Review is restricted to the administrative record.        Tex. Gov’t Code

§ 2001.175(e).

                                     ISSUE I.

         The trial court erred in failing to find substantial evidence in the
     administrative record to support the Board’s Final Decision and Order.

A.     The Board has authority to issue sanctions without Code of Ethics
       violations.

       One of the most basic functions of the Board is to regulate educator conduct

and issue sanctions. Tex. Educ. Code §§ 21.031(a); 21.041(b)(1)(7); 19 Tex.

Admin. Code § 249.5, or see App. I. The Board has promulgated a Code of Ethics,

the violation of which may result in a sanction ranging from a non-inscribed

(private) reprimand to permanent revocation of the individual’s educator




                                          4
certificate. Tex. Educ. Code § 21.041(7), (8); 19 Tex. Admin. Code, Ch. 247, §

249.15(a), (b)(3).

      But, importantly, aside from the Code of Ethics, an educator is subject to

being sanctioned if found “unworthy to instruct.”            19 Tex. Admin. Code

§ 249.15(b)(2), see App. E. As early as 1911, Tex. Rev. Civ. Statutes, art. 2882

[2814] made reference to the authority of the then-State Superintendent of Public

Instruction to cancel a certificate “upon satisfactory evidence that the holder

thereof “[ . . . ] is a person unworthy to instruct the youth of this State[.]” See App.

G.; Marrs, 270 S.W. at 588. The Marrs case (discussed in more detail in section

B, below) is squarely on point as it involves an appeal based on the vagueness and

uncertainty of the term “unworthy,” as used in Tex. Rev. Civ. Statutes art. 2814, in

effect at that time. See App. G, attached; Marrs, 270 S.W. 586, 588.

      By choosing to become part of any regulated profession, the license holder is

consciously and voluntarily making a choice to abide by the rules of that

profession.

B.    The ALJ misinterpreted and misapplied the standard of “unworthy to
      instruct.”

      1. The Board requires conduct to support a sanction, it does not require
         Code of Ethics violations.

      The Board’s complaint alleged that Montalvo’s conduct indicates that he is a

person unworthy to instruct, and that he violated various disciplinary rules of the


                                           5
Board.       2 AR 75.      The ALJ found that none of the alleged violations were

substantiated. 1 AR 63–64 (FOF # 16, 21, 24, 25, 28–30, and COL #6–7), or see

App. D. To the contrary, the Findings of Fact support the Board’s action of

revoking Montalvo’s certificate because he is unworthy to instruct, including:

                FOF #11        District protocol required that injured
                               students he sent to the trainer. (1 AR 62);

                FOF #14        VS did not visit the trainer about her injury.
                               (1 AR 62);

                FOF #18:       Following her injury, VS underwent
                               stretching, rub downs, ice baths, and
                               whirlpool use under Mr. Montalvo’s
                               direction. (1 AR 63);

                FOF #20:       Mr. Montalvo gave VS, and other students,
                               rub downs. (1 AR 63);

                FOF #22:       On two or three occasions, student athletes
                               visited Mr. Montalvo’s home to use his
                               Jacuzzi in the master bath. The athletes
                               wore sports bras or bathing suit tops, and
                               brief “bikers” shorts. (1 AR 63);

                FOF #23:       On one occasion, VS went alone to Mr.
                               Montalvo’s house to use the Jacuzzi. (1 AR
                               63);

                FOF #26:       From February through June 2008, Mr.
                               Montalvo engaged in approximately 480
                               phone calls with Student 1,5 with over 80 of
                               the calls placed after 10:00 p.m. (1 AR 63).



5
    Student 1 and VS are the same person.
                                              6
      Montalvo did not challenge these findings. It is clear that there is substantial

evidence in the record for the Board to find that Montalvo is unworthy to instruct

based on his conduct, even though the ALJ failed to find a basis upon which the

Board could sanction Montalvo. There is testimony in the record attesting to the

fact that allowing students to come to your home to use the Jacuzzi in the master

bathroom is inappropriate and “unethical” (testimony of James Meguire, Head

Athletic Trainer at Rio Grande City High School, 4 AR 275, TR 295:21–296:5),

and that it is inappropriate (testimony of Rey Ramirez, Athletic Director at the Rio

Grande ISD, 4 AR 261, TR 241:13–18). There is also testimony that engaging in

over 400 telephone calls with a student in a four month period is a “little

excessive” and inappropriate (testimony of Rey Ramirez, 4 AR 261 TR 241:23–

242:2).

      What the ALJ failed to grasp is that Montalvo’s conduct, as found by FOF

#11, #14, #18, #20, #22–23, and #26, speaks for itself in terms of demonstrating a

serious lack of judgment.     These seven findings of fact indicate Montalvo’s

conduct – he did not object to any of them. It is that lack of judgment, leading to

Montalvo’s inappropriate and unacceptable behavior as an educator, which

indicates his unworthiness to instruct; violations of the Code of Ethics are

unnecessary.




                                          7
                                     ISSUE II.

           The Board properly amended the Proposal for Decision in
             Compliance with the Administrative Procedure Act.

   A. The Board properly amended the Proposal for Decision to comport with
      the findings of fact.

      The Board adopted, verbatim, all Findings of Fact and the first six of the

eight Conclusions of Law, modifying two, and adding one. The two Conclusions

of Law, as found by the ALJ, that are in issue are:

             7.    The foregoing Findings of Fact do not support a
                   conclusion that Mr. Montalvo is a person unworthy
                   to instruct or supervise the youth of this state.

             8.    SBEC is not authorized to take disciplinary action
                   against Respondent’s Texas Educator Certificate.

I AR 64. The Board modified those conclusions, and added a ninth one in its Final

Decision and Order:

             7.     Based on Findings of Fact 11, 14, 18, 20, 22, 23
                   and 26, Respondent exceeded the bounds of the
                   proper educator–student relationship and is a
                   person unworthy to instruct or supervise the youth
                   of this state.

             8.    SBEC is authorized to take disciplinary action
                   against Respondent’s Texas Educator Certificate.

             9.    Respondent’s     educator   certificate   should   be
                   sanctioned.




                                          8
        Based on Montalvo’s conduct as found in the Findings of Fact, there is

nothing arbitrary or capricious about the Board’s Final Decision and Order. It is

reasonable, given the Findings of Fact, for a state licensing board charged with

regulating educator conduct in an effort to ensure the safety of schoolchildren, to

find that Montalvo’s judgment and subsequent actions placed those children at

risk.

        Further, the changes were made by the Board in compliance with Tex. Gov’t

Code § 2001.058(e); they are supported by substantial evidence in the record (as

noted by the references to the specific findings of fact relied upon); were made, as

permitted under Tex. Gov’t Code section 2001.058(e)(1), because the ALJ

misinterpreted and misapplied the Board’s rule regarding “unworthy to instruct;”

and were explained in the Board’s Final Decision and Order, tying the findings to

the Board’s philosophy and perspective. I AR 67–69, or see Appendix B.

              1. The ALJ’s analysis supports finding poor judgment by
                 Montalvo.

        In her analysis of the evidence, the ALJ noted the following:

              “A coach’s talking to a student by telephone 480 times
              over five months is certainly a matter to trigger concern.”
              I AR 59 (App. D);

              “Mr. Montalvo unquestionably exercised bad judgment
              in opening his master bath to students, and especially to
              one female student alone—even if Mr. Montalvo’s wife
              was at home at the time.” 1 AR 61 (App. D).


                                           9
       Thus, the ALJ found at least two of Montalvo’s decisions to be of

questionable judgment and a cause for concern despite the conclusion in the PFD

that the Board has no basis upon which to sanction his certificate.      Based on the

totality of Montalvo’s questionable actions, the Board, as the final arbiter of the

sanction, properly determined that Montalvo is unworthy to instruct or supervise.

       The Marrs decision is instructive, because it speaks to educator “qualities.”

See Marrs, 270 S.W. at 588. In fact, what the Marrs Court opines is that there are

“many characteristics which may and should be considered in passing upon the

issue of unworthiness in a teacher” and that they are too many and varied to

enumerate. Id. at 588. The judgment of an educator is integral to that educator’s

worthiness, or unworthiness, to instruct or supervise the youth of this state.

             2. The Board’s Order is not arbitrary or capricious.

       As shown by both the Findings of Fact and the concerns found by the ALJ in

her analysis of Montalvo’s conduct, there is clearly a basis for reasonable minds to

come to the same conclusion that the Board came to, that is, to find that Montalvo

is unworthy to instruct.      The Board, as was the ALJ, is concerned about

Montalvo’s judgment and behavior but, unlike the ALJ, the Board also correctly

interpreted and applied the Findings of Fact to find that Montalvo is unworthy to

instruct.




                                          10
      Reiterating the standard involved in a substantial evidence appeal, the

question is not the correctness of the agency’s order, but its reasonableness. To be

“arbitrary and capricious,” there must be a lack of guiding principles:

             When there is vagueness, ambiguity, or room for policy
             determinations in a statute or regulation, we generally
             defer to the agency's interpretation unless it is “plainly
             erroneous or inconsistent with the language of the statute,
             regulation, or rule.” TGS NOPEC Geophysical Co. v.
             Combs, 340 S.W.3d 432, 438 (Tex. 2011). But this
             deference to the Board's interpretation is not conclusive
             or unlimited—we defer only to the extent that the Board's
             interpretation is reasonable.

Gomez v. Tex. Educ. Agency, 354 S.W.3d 905, 912 (Tex. App.–Austin 2011, pet.

denied). The Board’s “unworthy to instruct” determination is rationally related to

Montalvo’s conduct; even the ALJ expressed concern about that conduct in her

analysis of the evidence. It is reasonable for the Board to be concerned about

Montalvo allowing students to use the Jacuzzi in his master bath, including on one

occasion VS, a female under the age of 18, alone. It is equally reasonable for the

Board to be concerned about hundreds of phone calls having taken place during a

four–month period between VS and Montalvo. Those facts are just two of the

many taken into account when the Board found Montalvo to be unworthy to

instruct. Moreover, Montalvo did not appeal any of the findings of fact in his suit

for judicial review. Montalvo’s conduct goes beyond the fact that he did not




                                         11
violate the Code of Ethics; what matters is that the inappropriate conduct itself

occurred.

             3. The Board’s interpretation of its rules is to be given deference.

      The “unworthy to instruct” standard is broader than Code of Ethics or other

standards. As a result, whether or not Montalvo violated the Board’s rules is not

dispositive of whether or not he is “unworthy to instruct.” The ALJ’s conclusion

that the Board cannot sanction Montalvo’s certificate is an incorrect interpretation

of the Board’s rules, philosophy, and Disciplinary Policy. The Board has expertise

and a central role in protecting the welfare of schoolchildren and educators.

Because of that, Board’s conclusion finding Montalvo lacking in the judgment

necessary to be a role model for students and to protect them, must be given

deference.

      The Board’s interpretation of its statutes and rules is to be given “serious

consideration, as long as the construction is reasonable and does not contradict the

plain language of the statute.” Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994); Bexar

Metro. Water Dist. v. Tex. Comm'n on Envtl. Quality, 185 S.W.3d 546, 550 (Tex.

App.—Austin 2006, pet. denied) (“We give great weight to the agency's

interpretation of its own rules and regulations, although such interpretation is not

binding on this Court.”). Administrative rules are ordinarily construed in the same

manner as statutes. Rodriguez v. Serv. Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.


                                        12
1999). “Unless a rule is ambiguous, we follow the rule's clear language; when

there is vagueness, ambiguity, or room for policy determinations in a rule, we

defer to the agency's interpretation unless it is plainly inconsistent with the

language of the rule.” (Emphasis added). Zimmer US, Inc., v. Combs, 368 S.W.3d

579, 583 (Tex. App.—Austin 2012, no pet.). Further, agencies “must be afforded

sufficient flexibility to determine and carry out [their] clear legislative mandate.”

Bexar Metro., 185 S.W. 3d at 551.

       There is nothing inconsistent or unreasonable about the Board’s

interpretation of the “unworthy to instruct” language. To force the Board to wait

for a proven injury to a student is asking it to abandon its duty to protect

schoolchildren. Because Montalvo’s judgment and behaviors as an educator are

questionable, the Board’s determination that Montalvo is unworthy to instruct

should be accorded deference and upheld upon the evidence contained in the

record. The fact that the ALJ concluded that no ethical standards were violated

and that Montalvo is not unworthy to instruct is irrelevant to the Board’s

determination, based on the facts recited in the PFD, that Montalvo is unworthy to

instruct.

             4. The Board properly used the findings of fact to conclude that
                Montalvo is unworthy to instruct.

       It is clear from the discussion of the evidence in the PFD that the ALJ

analyzed each piece of evidence in terms of whether or not it demonstrated a
                                         13
violation of a particular rule or standard, and if it indicated that Montalvo is

unworthy to instruct. But from the Board’s perspective, unworthiness to instruct is

not necessarily based on individual findings indicating poor judgment or ethical

violations but, rather, on the totality of findings. The fact that the ALJ found at

least two categories of behavior by Montalvo (excessive phone calls, and allowing

students to use the Jacuzzi in his master bath at home) to be questionable but not

indicative of Montalvo’s being unworthy to instruct, is not the end of the analysis.

         In her concurring opinion in In re State Bd. for Educator Certification, No.

13-0537, 2014 Tex. LEXIS 1208 (Tex. December 19, 2014), Justice Guzman

wrote:

               I also write separately today because I believe the record
               before us fails to affirmatively indicate that the trial court
               considered the potentially significant harm to
               schoolchildren before effectively reinstating Erasmo
               Montalvo's educator certificate pending the outcome of
               the appeal.

2014 Tex. LEXIS 1208 at *20. Justice Guzman further opined:

               But of at least equal import is the interest of
               schoolchildren in not being exposed to the harm of
               interaction with a teacher who fails to understand the
               proper bounds of the student-teacher relationship. The
               record before us reflects the trial court gave only cursory
               (if any) consideration to the safety and welfare of Texas
               students, declaring only that “[t]he competing equities
               favor granting the injunction.” But evidence undisputedly
               indicates that Montalvo, a high school track and field
               coach and an elementary school physical education
               coach, allowed a teenage female student—wearing only a
                                            14
             sports bra and biker shorts—to use the Jacuzzi in the
             master bathroom of his home while no one else was
             present, called that female student over 480 times over a
             four-month period (with over 80 calls occurring after
             10:00 p.m.), gave several female athletes “rubdowns”
             and ice baths, and failed to follow district protocol to
             send an injured athlete to the trainer. The State Board for
             Educator Certification determined these actions
             exceeded the bounds of the proper educator-student
             relationship and violated the trusted position of authority
             afforded to Texas school teachers. Allowing Montalvo to
             continue teaching after willingly exceeding the bounds of
             the proper student-teacher relationship could
             substantially harm the safety and welfare of Texas
             schoolchildren.

Id. at *23–24 (emphasis added).        While Justice Guzman was discussing the

issuance by the trial court of its injunction against the Board while the case is on

appeal, her observations clearly relate equally as well to the merits of this case and

go to the heart of the “unworthy to instruct” issue.

      The Board has experience, expertise, and a thorough understanding of what

it means to find an educator to be unworthy to instruct.           It is the Board’s

interpretation of the phrase, “unworthy to instruct,” which dictates whether or not

the pieces of evidence, as found by the ALJ, support such a finding. In this case,

there are no specific Code of Ethics or other rule violations. And, while individual

facts may not support a finding that Montalvo is unworthy to instruct, the Board

has explained that it is all of those findings together that indicate to it, that

Montalvo is unworthy to instruct. I AR 68–69, or see App. B. The Board’s Final


                                          15
Decision and Order cites to seven findings of fact – the findings that speak to

Montalvo’s conduct and that went unchallenged in the trial court – found by the

ALJ that support its conclusion that Montalvo is unworthy to instruct.

         In summary, the Board found that, based on the totality of circumstances,

Montalvo exceeded the boundaries of an appropriate educator-student relationship,

and is unworthy to instruct.

                                      ISSUE III.

               The Board’s standard of “unworthy to instruct” is not
                             unconstitutionally vague.

   A. The meaning and history of “unworthy to instruct.”

         1. The “unworthy to instruct” language has been a part of educator
            parlance since at least 1925.


         The standard of “unworthy to instruct” is not unconstitutionally vague or

otherwise a violation of Montalvo’s due process rights. The standard has a long

history with educators, in both law and case law. In fact, other professions have

analogous standards which have also been upheld.

         The “unworthy to instruct” language appears in several places in the Board’s

rules.    It is first referenced in § 249.3, the “Definitions” section relating to

disciplinary proceedings:




                                          16
            Unworthy to instruct or to supervise the youth of this
            state—the determination that a person is unfit to hold a
            certificate under the TEC, Chapter 21, Subchapter B,6 or
            to be allowed on a school campus under the auspices of
            an educator preparation program.

19 Tex. Admin. Code § 249.3(45), or see App. F. The next reference is contained

in § 249.15(b)(2):

            § 249.15. Disciplinary Action by State Board for
            Educator Certification
            (a) Pursuant to this chapter, the State Board for Educator
            Certification (SBEC) may take any of the following
            actions:
            ...

            (4) revoke or cancel, which includes accepting the
            surrender of, a certificate without opportunity for
            reapplication for a set term or permanently; or
            ...

            (b) The SBEC may take any of the actions listed in
            subsection (a) of this section based on satisfactory
            evidence that:
            ...

                (2) the person is unworthy to instruct or to supervise
            the youth of this state;

19 Tex. Admin. Code §§ 249.15(a)(4), (b)(2) (emphasis added), or see App. E.

Thus, § 249.15 expressly authorizes the Board to revoke an educator certificate

based on being found “unworthy to instruct.”



6
 Chapter 21, Subchapter B of the Texas Education Code is the chapter governing
the certification of educators.
                                       17
      Section 13.046 of the Texas Education Code (now repealed), in noting when

an educator certificate is subject to cancellation, referenced “unworthy to instruct”:

             (a) Any teacher's certificate issued under the provisions
             of this code or under any previous statute relating to the
             certification of teachers may be suspended or cancelled
             by the state commissioner of education under any one or
             more of the following circumstances:

             ...

              (2) on satisfactory evidence that the holder is a person
             unworthy to instruct the youth of this state; or

(emphasis added). Tex. Educ. Code § 13.046(a)(2) (Repealed by Acts of May 30,

1995, 74th Leg., R.S. ch. 260, § 58(1), 2003 Tex. Gen. Laws 2498. When the

Board came into existence, in 1995, various statutes were repealed, including

§ 13.046, and others promulgated. Even prior to § 13.046, reference can be found

to the authority of the then-State Superintendent of Public Instruction to cancel a

certificate “upon satisfactory evidence that the holder thereof “[ . . . ] is a person

unworthy to instruct the youth of this State. Tex. Rev. Civ. Statutes 1911, art.

2884 [2814]. See App. G.

      2. The “unworthy to instruct,” and analogous standards, have been
         upheld in case law.

      Case law in Texas referencing “unworthy to instruct” also goes back at least

as far as 1925:




                                          18
            The contention is that the term “unworthy,” as used in
            article 2814, is too vague and uncertain to legally define
            a disqualification to further hold a teacher's certificate.

Marrs, 270 S.W. at 588.      Thus, in addressing Montalvo’s assertion that the

standard of “unworthy to instruct” is vague and ambiguous, the Marrs case is

directly on point. The Court opined:

            The word “unworthy,” as used in common parlance, has
            a well-defined signification. As here used, it means the
            lack of “worth”; the absence of those moral and mental
            qualities which are required to enable one to render the
            service essential to the accomplishment of the object
            which the law has in view. It may also include those
            positive traits of character which, notwithstanding
            excellent educational attainments, unfit one to impart
            proper instruction to the young. To call one “unworthy”
            is to impute moral delinquency to a degree of unfitness
            for the work in hand. There are many characteristics
            which may and should be considered in passing upon the
            issue of unworthiness in a teacher in the public schools.
            Different minds might reach different conclusions as to
            what qualities of character should render one unworthy
            to hold a certificate to teach. But there can be no
            difference of opinion about the fact that an unworthy
            person should not be permitted to teach in the public
            schools. What qualities, or lack of qualities, should
            render one unworthy would be difficult for legislative
            enumeration.      They are so numerous, and their
            combinations so varied in different individuals, that a
            statute which undertakes to be more specific would either
            be incomplete, or so inflexible as to defeat the ends
            sought. In the very nature of the subject there must be
            lodged somewhere a personal discretion for determining
            who are the “unworthy.”




                                        19
(Emphasis added).     Id.   Aside from its detailed explanation of “unworthy to

instruct,” this passage in Marrs makes it clear that it is impossible to legislate all

circumstances in which one may be found unworthy to instruct. The Marrs case

has not been overruled.

      Other cases upholding language that is analogous to “unworthy to instruct”

in that the language is not susceptible to exact definition and has been attacked as

too vague and ambiguous to be upheld, include: Jordan v. State Bd. of Ins., 334

S.W. 2d 278, 280 (Tex. 1960) (“Further the idea embodied within the phrase

[unworthy of the public confidence] is reasonably clear and hence acceptable as a

standard of measurement. And in this lies the true constitutional test.”); Martinez v.

Tex. State Bd. of Med. Exam’rs, 476 S.W.2d 400, 404 (Tex. Civ. App.—San

Antonio 1972, writ ref’d n.r.e.) (“The idea embodied within the phrase ‘grossly

unprofessional or dishonorable conduct of a character which in the opinion of the

Board is likely to deceive or defraud the public’ is reasonably clear.”); Key

Western Life Ins. Co. v. State Board of Ins., 350 S.W.2d 839 (1961), (authorizing

disapproval of a policy form if it "encourages misrepresentation"); Vista

Healthcare, Inc. v. Tex. Mut. Ins. Co., 324 S.W.3d 264, 274 (Tex. App.—Austin

2010, pet. denied) (“ . . . no requirement here that every detail of what constitutes

‘fair and reasonable’ . . . be set out by rule to provide Vista with fair notice of the

standards by which individual fee disputes will be adjudicated.”).         And, as in


                                          20
Marrs, these opinions support the proposition that the fact situations to which civil

statutes might apply are simply too numerous to legislate.

      In Jordan v. State Bd. of Ins., 334 S.W. 2d 278, 281 (Tex. 1960), the Texas

Supreme Court includes in its opinion a list (citing to K. Davis, Administrative Law

Treatise, § 2.03 (1st ed. 1958)) of various “general” phrases – i.e., the same genre

as “unworthy to instruct” – which have passed muster with the United States

Supreme Court;

             [T]he standards the Supreme Court [of the United States]
             has held adequate include ‘just and reasonable,’ ‘public
             interest,’ ‘unreasonable obstruction’ to navigation,
             ‘reciprocally unequal and unreasonable,’ ‘public
             convenience, interest, or necessity,’ ‘tea of inferior
             quality,’ ‘unfair methods of competition,’ ‘reasonable
             variations,’ ‘unduly or unnecessarily complicate the
             structure’ of a holding company system or ‘unfairly or
             inequitably distribute voting power among security
             holders.’”

The Jordan case also specifically cites to Marrs. See Jordan, 334 S.W. 2d at 281.

      As evidence of just how central the concept of “unworthy to instruct” and

the Marrs case is to the Board and disciplinary actions, the Board cites to Marrs in

its Disciplinary Policy.   7 AR 688–690, or see App. J. Portions of the Board’s

Disciplinary Policy are now stated in rule (although this was not the case until

December 23, 2013), including its explanation of “unworthy to instruct.” 19 Tex.

Admin. Code 249.5.



                                         21
B.    “Unworthy to instruct” applies to Montalvo despite the lack of other
      disciplinary violations.

      The allegation that Montalvo is “unworthy to instruct or supervise the youth

of this state” stands as a separate basis for sanctioning an educator certificate and

does not rely on a violation of the Code of Ethics.         19 Tex. Admin. Code

§ 249.15(b)(2); I AR 64 (COL #5). The ALJ’s Findings of Fact, adopted verbatim

by the Board in its Final Decision and Order, support a finding of “unworthy to

instruct.”   Thus, for example, while the ALJ did not find any romantic

underpinnings in the 480 phone calls over a four month period between Montalvo

and VS and therefore no violations of the Code of Ethics, the Board took exception

to the fact that there were 480 calls, determining that such an excessive number of

calls crossed the bounds of an appropriate educator-student relationship. I AR 67–

68. As another example, the fact that the ALJ failed to find that Montalvo had

sexually abused or assaulted VS when she went alone to Montalvo’s house to use

the Jacuzzi did not sway the Board, which, instead, took exception to the fact that

Montalvo allowed VS come to his home alone to use the Jacuzzi in his master

bathroom. 1 AR 67–68.        The Board found that this conduct makes Montalvo

unworthy to instruct by “crossing the bounds of an appropriate student-teacher

relationship.” I AR 69, or see App. B

      There is no doubt that allowing VS, a female high school student, into his

master bathroom to use the Jacuzzi, illustrates a lack of judgment on Montalvo’s
                                         22
part. Additionally, the occurrence of 480 telephone calls during a four-month

period, with over 80 of them taking place after 10:00 p.m., further illustrates

Montalvo’s lack of judgment.

      Montalvo’s conduct, as found by the ALJ’s Findings of Fact, exceeds the

bounds of a proper educator–student relationship. The Board relied on those

findings illustrating his conduct to find Montalvo unworthy to instruct.

      Ultimately, whether or not improper conduct—beyond the ALJ’s Findings

of Fact—took place is not the issue. Thus, it does not matter whether the content

of the phone calls was romantic in nature. Stated another way, it is immaterial

whether the content of the phone calls implicated a Code of Ethics violation for the

Board to find that the conduct exceeded the bounds of an appropriate student-

teacher relationship and thus at least implicates the standard of “unworthy to

instruct.” Instead, the ultimate issue for the Board is the fact that Montalvo

engaged in these behaviors. That conduct alone demonstrates how Montalvo fails

to meet the expectations of the Board in protecting the welfare of students and

educators.

      The legislature has given broad authority to the Board to carry out its

functions. Tex. Educ. Code §§ 21.031(a), .041(b)(1)(7)(8). The Board determined

that Montalvo’s judgment and behavior speaks louder than whether or not specific

standards in the Code of Ethics were violated. Reasonable minds could certainly


                                         23
reach the same conclusion as the Board concerning Montalvo’s judgment. “The

substantial-evidence standard does not require ‘a large or considerable amount of

evidence’—in fact, the evidence may even preponderate against the agency's

finding—but requires only ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion of fact.’” McHaney, 2015 Tex. App.

LEXIS 1903 at *11.

                                    ISSUE IV.

       The trial court abused its discretion in issuing a permanent injunction.

       The trial court improperly issued a permanent injunction, prohibiting the

Board from treating Montalvo’s educator certificate as having been revoked. See

App. A.

       In issuing an injunction, the trial court must look not only at the elements

needed to support issuance, but it must also balance the equities. Triantaphyllis v.

Gamble, 93 S.W.3d 398, 401–02 (Tex. App.—Houston [14th Dist.] 2002, pet.

denied). Because an injunction is an equitable remedy, the equities on both sides

must be taken into account prior to issuance. In re Gamble, 71 S.W.3d 313, 317

(Tex. 2002); Storey v. Cent. Hide & Rendering Co., 226 S.W.2d 615, 618-19 (Tex.

1950). A failure to do so is an abuse of discretion, as here. In re State Bd. for

Educator Certification, 2014 Tex. LEXIS 1208 at *20; Triantaphyllis 93 S.W.3d at

402.


                                        24
       As noted above in Justice Guzman’s concurring opinion, the trial court

failed to balance the equities prior to issuing its injunction and disallowing the

Board from superseding its ruling on appeal. See App. H (Trial Court’s Findings

of Fact and Conclusions of Law). Instead, the trial court looked only at the effect

on Montalvo if it did not grant his request for relief, and failed to look at the risk to

schoolchildren in allowing Montalvo to remain an educator pending any appeal by

the Board.

      The trial court, in issuing an injunction against the Board without weighing

the equities, has abused its discretion and allowed Montalvo to continue in his role

as an educator, despite being found unworthy to instruct.             As a result, the

schoolchildren that the Board has a duty to protect, have been put at risk.

                                   CONCLUSION

      The Court should reverse the trial court’s Judgment, including the

injunction, and affirm the Board’s Final Decision and Order revoking Monalvo’s

educator certificate, for the following reasons:

             1.     The ALJ misinterpreted and misapplied the standard of
                    “unworthy to instruct” as used in educator parlance;

             2.     There is substantial evidence in the record supporting the
                    Board’s finding that Montalvo, due to his judgment and
                    conduct, is unworthy to instruct;

             3.     No violations of the Educators’ Code of Ethics or other Board
                    rules are necessary to support a finding of “unworthy to
                    instruct;”
                                           25
              4.   The Board’s changes to the ALJ’s Proposal for Decision
                   comply with the requirements of the APA, § 2001.058(e)(1),
                   because the changes were made based on legal reasons
                   explained in its Final Decision and Order;

              5.    All changes to the Proposal for Decision are supported by
                    substantial evidence; and

              6.    The issuance of a permanent injunction against the Board was
                    an abuse of discretion.

                                     PRAYER

       Appellant, State Board for Educator Certification, respectfully requests that

this Court affirm the Board’s Final Decision and Order in SOAH Docket No. 701–

11–8468.EC in all respects and deny all relief sought by Appellee, Erasmo

Montalvo. Appellant prays for such other and further relief to which it may be

justly entitled.

                                Respectfully submitted,

                                KEN PAXTON
                                Attorney General of Texas

                                CHARLES E. ROY
                                First Assistant Attorney General

                                JAMES E. DAVIS
                                Deputy Attorney General for Civil Litigation

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




                                         26
                               /s/ Ellen M. Sameth
                               ELLEN M. SAMETH
                               Assistant Attorney General
                               Texas State Bar No. 17555550
                               OFFICE OF THE TEXAS ATTORNEY GENERAL
                               ADMINISTRATIVE LAW DIVISION
                               P.O. Box 12548
                               Austin, Texas 78711-2548
                               Telephone: (512) 936-1838
                               Facsimile: (512) 457-4608
                               E-mail: ellen.sameth@texasattorneygeneral.gov
                               ATTORNEYS FOR STATE BOARD FOR
                               EDUCATOR CERTIFICATION


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

9 and the word count of this document is 5,796. The word processing software

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

Microsoft Word 2010.

Date: April 27, 2015

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




                                        27
                       CERTIFICATE OF SERVICE
      I hereby certify that on April 27, 2015, a true and correct copy of the

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

record:

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


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




                                     28
                            CASE NO. 03- 1 3-00370-CV



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



          STATE BOARD FOR EDUCATOR CERTIFICATION ANd
     MICHAEL BERRY, TIIE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
                     CAPACITY ONLY,
                            Appellant,

                                         V


                             ERASMO MONTALVO,
                                  Appellee.



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


                               APPELLANTS' BRIEF




                                APPENDIX A
                                                                                                           2
                                                                                    har
                                                                                    ó9
                                                                                    (J ,!
                          CAUSE NO. D-I-GN-12-002991                                 +J l'''
                                                                                     (J

                                                                                      LT,   :         ü>
ERASMO MONTALVO,                          $     IN THE DIS'|RICT COURT OF            rlÕ() :{
                                                                                      ,u
      Plaintffi                           $
                                                                                       -í       ¿:¡   É
                                                                                          --Õ         ^4
                                          $                                               f) t-'
v                                         $     TRAVIS COUNTY, TEXAS                       :¡ ir_
                                                                                                               4

                                          $
THE STATE BOARD FOR                       $
EDUCATO R CERTIFICATION,                        $
      Defendant,                          $     2OOTH     JUDICIAL DISTRICT

                                    JUDGMENT

      On the 2l't day of March, 2013, the Court heard the merits of the above-

entitled and numbered cause on the claim ofjudicial review brought by Plaintiff,

Erasmo Montalvo, complaining of the administrative order of Defendant, State

Boarcl for Educator Certification, which was subject to substantial evidence review

on the adrninistrative record. Plaintiffs Original Petition included a request for

injunctive relief, heard on    April 25,2013, Plaintiff   Erasmo Montalvo appeared in

person and by his attorneys of record, Mark Robinett and Corey Tanner, on both

dates; Defendant State Board for Educator Certifrcation appeared in person and by

its attorney of record, Ellen Sameth, Assistant Attorney General, on both dates.

      After considering atl briefs, arguments, the adlninistrative record             and

applicable rules and law, the Court finds that Defendant's Final Decision and Order

in SOAH Docket No.70l-ll-8468.8C is not supported by substantial evidence and

is arbitrary and capricious,

      IT IS THEREFORE ORDERED that Defendant's Final Decision and Order

is REVERSED,




                                                                             Page   I ofZ
      The Court FURTHER FINDS, after considering the evidence adduced and

argument of counsel during the   April 25,2013, hearing for injunctive relief, that Plaintiffi

Erasmo Montalvo, is entitled to a permanent injtrnction prohibiting the State Board for

Educator from treating as revoked or revoking the educator certificate of Plaintiff based

on the facts and allegations made the basis of Defendant's complaint in SOAH Docket

No. 701-ll-8468.EC, which injunction is to.remain in effect until, in the case of          any


appeal taken by Defendant, a ruling from the appellate cotlrt issues'

       IT IS FURTHER ORDERED, pursuant to Rule 2a.2@)(3) of the Texas Rules of

Appellate Procedure, that any appeal taken of this Judgment by Defendant State Board

for Educator Certifrcation will not supersede this Judgment during the pendency of such
                                                                        *¡    oQo.qoto secure
appeal. Plaintiff is ORDERED to post security in the amount of

the Defendant against any loss or damage caused by the relief granted Plaintiff           if   an


appellate court determines, on final disposition, that relief was improper.

       IT IS FURTHER ORDERED that all taxable costs of court be           assessed against the


party who incurred them.

       IT IS FURTHER ORDERED that alt remedies not specifically granted are herein

denied.

          signed on the   21Ë, * APÉtc            20t3.



                                                                 ETIMS




                                                                                     Pagc2 ol2
                            CASE NO. 03-1 3-00370-CV



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



          STATE BOARD FOR EDUCATOR CERTIFICATION ANd
     MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
                     CAPAÇITY ONLY,
                           Appellant,

                                         V


                             ERASMO MONTALVO,
                                  Appellee.



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


                               APPELLANTS' BRIEF




                                APPENDIX B
                                  soAH DOCKET NO. XXX-XX-XXXX.8C
TEXAS EDUCÂTION AGENCY,                             $       BEFORE THE STATE OF'FICE
EDUC^'IOR CERTIFICI\TION AND                        $
STANDARDS DIVISTON,                                 $
  Petitioner                                        $
                                                    $
V,                                                  $                           OF
                                                    $
ERASMO MONTALVO,.IR.,                               $
     Respondent                                     s       ADMINISTRATIVE TIEARJNGS

                                    FINAL DECISION A¡{D ORDER

Came on for consideration on the l0rl'clay of Augusl2012 the above-styled matter.


After proper notice was given, the above-styled case was heard by an Administrative Law Judge
who made ancl hled a Proposal for Decision containing Findings of Fact and Conclusions of
Law. This      Proposal     for Decision was properly       served on   all parties, who were givcn        an

opport¡nity to file exceptions and rcplies     as part   ol the administrative record.
The State Board for Educator Certification, ("Board" or "SBEC"), after review and consideration
of the   Proposal for l)ecision, as well as the exceptions and replies fìled,             if   any, adopts the

Findings of Fact Nos.      I   through 33 and Conclusions of Law Nos.       I   through 6 in the Proposal tbr

Decision, as   if fully   set out herein. The Board modifies and adopts Conclusions             of Law Nos.   7

and 8, as set out below, and aclds Conclusion of Law 9,              All   proposed Findings      of Fact and
Conclusions of Lnw not specifically adopted herein are hereby denied.

Respondent, a rnale coach, engaged in conduct which exceeds the bottnds of the ¡lroper educator-

stulent relarionship during the spring semester of 200tì by iailing to tbllow district protocol and
s,.-nd V.S. ro the trainer for her ongoing iniury, (Findings ot'Fact ll and la); by rttbbing dowrr

ancl/gr nrassaging V.S., (Finrlings      of Fact l8     and 20); by treating V.S.'s initrry himself rvith

stretching, ice baths, antl rvhirlpools, (F-inding of Fact l8); by allolving V.S, to use thc Jttcttzz'iin
thc r:rastcr bedroom ot'his homc 'uvhile no one else was present, (Fírrdings of ["act 22 and 23); and
by cngaging in approximately 480 phone calls rvith V.S, during a .l nronth pcriocl, rvith over 80
trf those crrlls being placed atler l0:00 p.nr. lFinding of l?act 26)'




                                                                                                           MONTALVO V. SBEC
                                                                                                           0067
Conclusion of Law 7l

Basecl on Findings of Fttct    ll,   14, 18,20,22,23 and26, Respondent exceeded the bounds of the
proper educator-student relationship and is a person unworthy to ínstruct or supervise the youth
of this state.

Conclusion of Law     8:


SBEC is authorized to take disciplinary action against Respondent's Texas Educator Certificate'

Conclusion of Law 9:

Respondent's educator certificate should be sanctioned'

'l'hese additions and modifications are permissible pursuant                   to Texas Government Code              g


2001.058(e) and are necessary because the Administrative Law Judge failcd to appropriately
                                                    'fexReg 5421'22, Marrs v' lufulthews,270
interpret.and apply SBEC policies and rules. See 34

S.W. 586 (1925), l9 Tex. Admin. Code 5 249,15(b)(2)'

protecting the safety and welfare of Texas schoolchildren and school personnel is a primary

purpose of the SBEC. A certified educator holds a unique position of public trust, and
                                                                                       therefore,

the contluct of an edttcator must be held to the highest standard'


The nroral titness of an educator must be deternlined from an examination of all relevant
                                                                                          conduct

and is not limited to conduct that constitutes a criminal violation or results in a criminal
              'Ihe rcsponsibility ancl discretion to make this weighty detern'rination is vested in               the
conviction.
SBEC.

ÌVIr. Ivfonralvo held a rrusted position      ol authoríty that provided him a ttnic¡ue opportttnity to
expl.it vulnerable tèmale athleres.        Eclucator.s nrttst clearly understand the hortndaries of the
                                                                                      any violatiott
educator-stt¡dent relationship that they are trustcd not to cross. The SBEC considers

tif that trust to bc cQnduct that may result in permanent revocalion olln educator's certific¿ìte'

i\llorving a f'emale stutlerrt tt: use the   iactrz,'t-i   in lhe lnaster batltroo¡n ol'his h0llre rvlrile trtl   trlre

                                                                              ()\'ur (ì lt¡ur tnonlh pcriod. itnd
else is l)resL.nt. cirlling a strrrlcn( ovcr {81) tinres in the late evcnirrg




                                                                                                                   MONTALVO V, SBEC
                                                                                                                   0068
a male corch giv¡ng a t'emale athlete rubdowns and ice baths, tàiling to follorv district protocol to

send an injured athlete to the trainer is conduct that the SBEC consiclers to cross the bounds     of

lhe appropriate student-teacher relationship and is sa¡rctionable conduct.


Respondent's uctions crossed the bounds      of an appropriate   cducator'student relationship anrl
                                               'Iexas educator celificate,
show that he is not presently worthy to hold a


NOW, THEREFORE, lT IS ORDERED by the Board pursuant to the Texas Education Code
Sections Zl.O3l and 2t.041(b)(7) and the Board's rules promulgated in accordance with these
statutes thar Respondent ERASMO MONTALVO, JR.'S Texas Educator Certifrcate Ntrmber
XXX-XX-66-13 is herebY      ?o,. '^rrL¡¡ d
On behalf of the State Board l'or Educator Certification:



                                                                     lo-
         L. CAIN, Ed.                                 DATE

 Note: Pttrstrctnt to Board order No. 990705DP' issued under I9 Tex. ldmin' code $
                                                                                             249'7(u),
                         the       Boardþr   Edtrcalor  Certificttlion may       sn order on hehuUof
the presiding oflìcer of     Sfate                                         'sign
                           møking  thetìnul decision on q case'
lhe majority of members




                                                                                                   MONTALVO V. SBEC
                                                                                                   0069
                            CASE NO. 03- 1 3-00370-CV



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


           STATE BOARD FOR EDUCATOR CERTIFICATION ANd
      MICHAEL BERRY, TIü ACTING CHIEF EXECUTIVE OFFICER OF
TI{E STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
                      CAPACITY ONLY,
                            Appellant,

                                         v

                             ERASMO MONTALVO,
                                  Appellee.



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


                               APPELLANTS' BRIEF




                                APPENDIX C
                                                                                                                    O- *l v
                                                                                                          En
                                                                                                          Ã$
                                                                                                                                  _9
                                                                                                                                  o
                                                                                                          ciã
                                                                                                          el-       :È.1 ño        ií

                                   CAUSE NO. D-1-cN-12.002991                                             ()
                                                                                                          ''r= >\
                                                                                                                    -rl
                                                                                                                    ñ¡l            =
                                                                                                          UD
                                                                                                          LJo
                                                                                                             =      æl
                                                                                                                    \,¡           =NÐ
 ERASMO MONTALVO,                                            IN TTIE DISTRICT COURT                       o¡O                 I   :)
         Plaintiff
                                                      $
                                                                                                          Ë,s       æ,        I
                                                                                                                                  U'
                                                      $
                                                                                                                    :Et           úõo
                                                      $                                                   EF
                                                                                                          0)F                     ó
 v                                                           TRAVIS COIJNTY, TEXAS                                            I
                                                      $                                                   u               i       E

                                                      $
 THE STATE BOARD FOR                                  $
 EDUCATOR CERTIFICATION AND                           $
 MCHAEL BERRY, THE ACTING                             $
 CHIEF OF THE STATE BOARD FOR                         $
 EDUCATOR CERTIFICATION, IN                           $
 HIS OFFICIAL CAPAC]TY ONLY                           $      2OOTH   ruDICIAL DISTRICT

                     AGREEI' ORDER DISMISSING MICHAEL BERRY

         on this   &uv            of     HÀ,4CH ,zot3, the Court considered the Agreed
Order Dismissing Míohael Berry as a Defendant in the instant cause, Afrer reviewing the

pleadings and this Agreed Order,             jointly fíled by counsel for Plaintiff and Defendants, thc

Court is of the opinion that the Agreed Order Dísmissing Michael Berry should                       be

granted and that Michael Berry, The Aoting Chief                     of the State Board for Educator

Certification, In his Off¡cial Capacity Only, should be dismissed from this lawsuit. The

Court finds that Michacl Berry ís not the Chief                   of the State Board for Educator
Certification, and that the only proper defendant to this lawsuit is the State Board for

Educator Certi ficati on,

        IT IS THEREFORE ORDERED that Michael Berry, The Acting Chief of the State

Board for Educator Certification, In his Official Capacity Only ís hereby DISMISSED                  as


a Defendant    with prejudice to re-filing same.




C/N D-l -CN- l2-002991   ; Montalvo v   SBEC and Mtchael Berry

                                                    Page I o/2
       SIGNED on the       &uro¡             M AÈc      Èl-          .20-É




                                                                Tì          SU
                                                                     '.1.
AGREED AS TO FORM AND SUBSTANCE:




EllenM. Sameth                                                    Mark W. Robinett
State Bar No. 17555550                                            state Bæ No. 17083600
OTrICE OF THE AI.TORNEY GENERAL                                   BRIMM, ARNETT, ROBINETT
AovIuISrR¡TIVE LAW DIvISION                                       CONNERS & MCCORMICK, P.C.
P.O. Box 12548                                                    2525 Wallingwood Drive, Bldg. 14
Austin, Texas 78'l ll'2548                                        Austin, Texas 78746
Telephone; (5 I 2) 936- t 83 I                                    Telephone: (5 12) 328'0048
Faosimiler (512) 320'0167                                         Facsimile: (5 I 2) 328'48 14
E-mail: Ellen.Sameth@.oag.statc,fx.us                             E-mail: mrobinett@brimarnett,com
ATTORNEY     NOR   DETENDANTS                                     ATIOR¡IEV FOR PLAINTIFP




C/N D- I -GN- t 2-00299 I ; Montalvo v SBEC ond Mlchael Berry

                                                   Poge 2   ol2
                            CASE NO. 03- 1 3-00370-CV



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



          STATE BOARD FOR EDUCATOR CERTIFICATION ANd
     MICHAEL BERRY, TIIE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
                     CAPACITY ONLY,
                            Appellant,

                                         V


                             ERASMO MONTALVO,
                                  Appellee.



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


                               APPELLANTS' BRIEF




                                APPENDIX D
                                      SOAH DOCKET NO. 701.1 I-8468.8C


 TEXÄS EDUCATION AGENCY                                             $           BEFORE THE STATD OFFICD
 DDUCATOR CERTIFICATION AND                                         $
 SÎANDARDS DIVISION,                                                $
 '    Petitioner                                                    $
                                                                    $                                  or
 v                                                                  $
                                                                    $
 ERASMO MONTALVO, JR.,                                              $
          Respondettt                                               $          ADMINISTRATIVE HEARINGS

                                                TABI,E OF CONTENTS

I.   JURISDICTION, NOTICE, AND PROCEDLJRAL IIISTORI                                                þiiârìü¡r¡)rïr¡r,¡f¡i,?,qr'¡r:,.¡.,'?'r,    I



     A.   Undisputed Background                   Fac1s,..,.......                                                            ,..,.,,,,.,....2

     B.   The AIlegAtiOnSír)t¡Ìii.ì¡ri..iËt ¡r¡tí'.ir1jii¡aaia¡i¿ir¡¡ih;ir.ii..¡¡¡ir'.¡lïi.aiì¡¡i¡ôli¡¡ir.ïr¡är!:a¡ir¡Ì¡¡iìt"ii¡:iris¡r.3


          1.      Allegations Set X'orth in StafPs                  Pleacling.....                                            .............'.3
          2.      Unpled M¿tters..,..,                                                                                       ,,,,,,,,,',,,,,,4




          l.
          .,
                  Statements by V.S. (Student 1)                                                                                               8
                           V.S.'s    Testimony,.                                                                                      .......' 8
                  ^,
                  b.   V.S-ts Statenrent at thc Child Advocacy Ccnter¡,.-.;-;                                j.ri.,.¿r.1ai,i.i.,4..>¡;it*ó.   14
          3.      Testimony t¡f Erasmo Mr¡ntalvo                                                                                ..,,.'..... 16
          4.      Telephone Records......             .....................                                                           .....,20
          5.      Testimony of Other
                                     'Witnesses                                                                             ..""".".'.'       21
                  a.       .Student     I's Parents                                                                                           21
                  b.       Diana Garzn-Louis,              LPC.......,                                          ....,.24
                  c.       Rio Grande City CISD Teachers nnd Colches.....................-...'.............26
                  d.       Rio Grandc CirJ* IIS Students and Itarents ¡;¡ìjìi¡';..¡'¡,r.1ir.,¿.;iz'¡,'t,,.¿,',,,;.,..34




                                                                                                                             MONTALVO V. SBEC
                                                                                                                             0008
                                        TAtsLE OF CONTENTS                  I'AGE 2
soAH DOCKET NO. XXX-XX-XXXX.8C




        1.   \ilitness Credibility                                       """"""'    43

             Sexual Impropricty and Assault
                                                                                    45
        2,                                                                """"""
        3,   Telling V.S. Not to Go to the Trainer                  """""""""""'    48

        4,   Telephoue Cat1s..........'                                      """'   50

        5.   Student IIse of Mr. Montalvo's Jacuzzi'.'..'.,"""""'    -;'*--"""""' 52
        6.   Sunrmary and Resomnrendttiorr                                 """""'52




                                                                          MONTALVO V. SBEC
                                                                          0009
                                  SOAH DOCKDT NO. 70I-1I-8468.8C


 TEXAS EDUCATION ÄGENCY                                   $         BEFORE THD STATE OÍ'FICD
EDUCATOR CERTIIÍICATION ANI)                              $
STANDARDS DIVISION,                                       $
     Petitioner                                           $
                                                          $                            OF
 Vi,                                                      s
                                                          $
 ERASMO IVIONTALVO, JR.,                                   $
            Respondent                                     $       ADMI NI STRATIVTi, HEARINGS


                                       PROPOSAL FOR DECISION


       The staff (SIr¡fÐ of the Texas Education Agency, Educator Certification and Søndard-s
Division (TEA), on behalf of the State Boa¡d for Educator Certification (SBEC or the Board),
brought this {isciplirìary action against Erasmo Montalvo, Jr,, to permanently revoke his Texas
Educator Certificate.r Staff âlleges that Rcspondent engagcd in sexual contact r'vith a fcmale
high school student and otherwise treated her in a neglectful or harmful filanner' The
Actministrative Law Juclge (ALJ) fìrrds tbe eviclence fails to prepottderate ìn suppott of StafPs
allegations. 'fhe AL,J recommends that no sanction be assessed against Mr. Montalvo.


                 I.   JURISDICTION, NOTICE, AND PROCEDUR.AL HISTORY

                     of notjce or jurisdiction are acldressed in the findings of fact. Issues
        General issues
concerning the scope of the case, as determinecl by the pleaclings, are discussed below in
connection witli Staff s allegatiorrs'


        The hearing was held January g-12, 2012, before ALJ Shannon Kilgore at the State
Officc of Administrative I'Iearings (SOAIÐ in the'Williarn P. Clements Brrilding,300 West l5rr'
Street, pourth Floor, Austin, Texas. Staff was represented by atforneys Richard J. Ybarra
                                                                                          and

lr4erle Hoffnlan Dover, Mr. Montah,o appeared ancl was represented by attorneys lr4ark Robinett




                                                                                            'lex. Educ. Code $ 21,015.
        '   TEA is authorizeii fo prot,ide adrninistrative fonctions and scr.liccs to SBEC.




                                                                                                         MONTALVO V. SBEC
                                                                                                         001 0
soÄH DocKIlT NO, 701-ll-8468.8C                                   PROPOSAL FOR DECISION                                   PAGE,2



and CoÌey Tanner. The recorcl closed on lvlarch 9,2012, with the parties' submission of reply

briefs,'?



                                                        II. DISCUSSION

A.          Llndisputed Background fiacts


            Mr, Montalvo holds a Texas Educator Certificate issued by the Board. In the spring of
2008, Mr.lr4ontalvo was a track and field coach at the Rio Grande City High School
(Rio (hande City I-IS), part of the Rio Grande City Consolidated Independent School District
(Rio Grande City CISD). He was also the physical education coach at a CISD elementary
school,



            $tudent     I   (also r.feo"A to as "V.S."),3 afemale seniorunder the age of 18, was on the
hìgh school tlack team coached by Mr. Montalvo. Dulirrg the 2008 ûack season, she suffered                                        a

ha¡rstri¡g injur.y. Student 1 received a track and field scho)arship to attend college in
Corpus Clristi the following year, She graduated from high school in May 2008 and lefl for
college that August.


            Ar some point during the 2008-2009 academic year, V.S. told a c.ounselor at her college
and her family that tvlr. Montalvo had sexually assaulted her                            in the spring of 2008, In 2009,
Mr.Montalvo was chargecl with trvo counts of secottd-degtee'felony improper relationship
between educator and student. He was indicted in October 2009, and acquitted of both counts
following a jury trial.'l




            2 The parties' blieîs included proposed findilgs offact and conclusions of !aw, Proposed              1-rndings   offäct
an¿ conr:lusi¡rns of law not spe(:ifirally adopted in this proposal for clecision (PFD) are ovenuled.
            3
                This srudort was rcl'crcd to   i¡   Staft's pfeadings as "Súudent   l"   ìrul in the henring mostly as "\'.S." The
AL-,| therefo¡e uscs boih rnethods    of referring to the sludent.
            4 Rcspondcnt's Exhibits l-3.




                                                                                                                    MONTALVO V. SBEC
                                                                                                                    001   I
soAH DOCKET NO. XXX-XX-XXXX.8C                               PROPOSAL FOR DECISION                             PAGE    3




R.      The Allegations


           L,             Allegations Sct X'orth in StafPs Pleading


           Tlre primary altegation             of Slaffs Original Petition is that, in the spring of            2008,

lvfr. Montalrro engaged              in unwarrted sexual contact with Stude¡lt        I   ort a number of occasions,
StafPs specific aJlegafiorrs of sekual inrpropriet¡' are as follows:5


           a              Res¡rondent [nrassaged] Stuclent I's leglhamstring area and would move farther
                          and farther up her leg as he massaged her. Ultimately, Respondent's touchíng
                          became inappropriate, moving up into Student I's genital area,

           a              Stuclent 1, along with other 1'emale students on the girls' track team, would go to
                          Respondent's home to soali jn his "hot tub," wbich was actually a Jacuzzi-style
                          batlrtub in the master bedroom of his home. On one of these occasions when
                          Student I was alone with Respondent in his home, in or arouncl April 2008,
                          Respondent invited Student I to use his "hot tub." He then asked her to lie on his
                          bed so thal he could nrassage her leg. At that time, Respondent then proceeded to
                          engage in oral sex witlr Student L

           a              Subsequently, Respondent ÈnBaged in sexual telations witb Student              I   on school
                          property in the Field House.

           a              Continuing on through the spring semester of 2008, Respondent would engage in
                          inappropriate touching of Student l, sometimes occttrring on school propefly,


           Staff asserts tbat Mr. Montalvo told V.S. that                if   she lold the athletic trainer she was

injured,       the.     trainer would not let her run in the district and regional track meets, Furthet, Staff
alleges that, during the spring of 2008, Mr. Montalvo engaged in approxjrnately 480 phone calls
witb Studeot l, with over              B0 of the calls placed after   l0:0(l p.m.


           lvfr. Montalvo denies all allegations ol'sexual nrisconduct. He denies any assertion that
he told V..S, not to go to the trainer. He admits lhat there were plrone calls with Student                      l,   but

assefls that he does not know the numbel of calls. He' cie¡ic.s                 tlut the calls were inappropriate,d


           r 'l'hc allcgations are taken 6'om Steff's Original Petition at 2"5, as amended through an unopposed oral
rnotion at thc   hearing. I 'I'r. at 4-5.
           6            Monlalvo's .Answer at 2,
                N,lr.




                                                                                                         MONTALVO V. SBEC
                                                                                                         0012
soAH DOCI(E',t' NO. 701 -lr-8468.8C                                        PROPOSAL FOR DECISION                          PAGE 4



                  2.        Unpled Matters


        In iis opening sratementT and closing zugnrnenls. Staffhas made amunber of additional
assertions, including that Mr. \4ontalvo: gave V,S, rides home; rubbed down and massagcd

female athletes, inclucling V.S,; stretched female athletes                              in a way that looked inappropriate;
allowed female athletes, including V,S., to take ice baths in the field house without a I'emale
coach present to supervise; was alone with female athletes, including V.S., in a hotel room; gave
female athletes, including V.S., gifts; lailed to refer V.S. for counseliug in conuection v"ith ber
suicidal thoughts; slappecl girls on                       tleir   backsides; and took V.S, to be massaged by a female

coach who rvas not licensed or certified to give mâssages.8 Staff specificalty argues that                               manyïf
these assertions constitute bases for sanction,e



                  There are no factual allegations in Staff s pleadinglo to support any of these contentions,
rühile there are mùty factual assertions in Staffls pleading, there is uo mention of rides home,

stretching of female athletes, ice baùs, being alone with female athletes, gifts, handling of an
athlete with suicidal thorrght.s, Slapping of backsides, or a massage by an uncertified female
coach. As to massages, Staff s pleadirig alleges that Respondent massaged V'S. imrnediately
after ¡.er hamstring injury, that a massage on a later date became sexual, and that he told V-S.
that he needed                 to continue to massage her due to her injury.ll However, there is no allegation
that Mr. Montalvo should not have been engaged in non-sexual massages or rub dow¡rs of female

athletes, as Staff argues.


                  At hearin-r, Søff orally amended                    the. factual assertions   in its pleading, but did ttot move
 to include factual allegations going to arry of the matters describecl above, In his reply brief.
.Mr.lvlontalvo objected to Staft's going beyond the confines of itspleading'¡z The objection is


    ,   ,,(L-..              .;¡,.   -      t.
,

                  1 Tr, at 19.
                  *   Peticioner's Clo.sing Argtrtnent   a¡'   62o.
                  e Petitioner's Closing Ârgumcot at 20.
                  r0 Stafl--s Original Petition, as orally anrerrded at hearing.
                  rr Stafls Originaì Petition    at 3-4,
                  r2 Respontlent's Post-l'leaLing repìy Brief at 7'




                                                                                                                      MONTALVO V. SBEC
                                                                                                                      001 3
                                                                   PROPOSAL FOR DECISION                                      PAGE    5
soAH DoCKU',l' No. ?0I -l l-8468.I1C


sustained; those matters zrrenot considered as possibl" ina.p"ndent bases tbr sanction.l3
Holvever, the ALJ does consider the svidence relevant to those lnatters in light of whether it
supports the allegations actually plècl by Søff-


C.           Applicable Legal Standards

        SBÉC may take disciplinary action against an educator who is unrt'ofthy to inslruct or
supervise lhe youth of this state or u'ho has violaæd olÌe or more provisíons of the
                                                                                     Eduoatots'
                                                                                           youth
Code of Ethics,r{ In this case, Staff conten<ls that Mr. Montalvo is unworthy to supervise
and that he violated the following provisions of the Code of Ethics: (l) Standard 3.2,t5 by
knowìngly treating a stuclent in a manner that adversely affeots the student's learning, physical
¡ealth, nrental healtlr, or safety; (2) Standarcl 3,5,10 by intentionally, knowingly, or recklessly
engaging          in physical mistreatment, neglect, or abuse of a .student or minor;                           and (3) Standard

3,6,t7 by     soliciti¡g or engaging in sexual conduct or a romantic relationship with a student.rB


            t3 The ALJ       has co¡sicìered ttre possibility that these nlâtters 1ry€re tried by   consent.   See-Tex,.R'.   Civ' P' 67
                        the
(,When iszues not raised by                                                orintplied                          , they sball be treated
ìr, uti   ."rp."o   as   be
                         if t¡ey   hãd                                     Theywere                            tement' attd evidence
,rlruuna ïo them ,na, qdmitted                                            r, evidence                           was also potentially
irìru*r as background and context for ivfr, Montatvo's allcgedly sexual conduct             with V,S. Furthermore,
                                                  to       mattcrs  as independenr  bases for sanction, due to the fact
Mr, Monøluo ob¡ã.t.d in his closing argument         these
                                  colnsettr is a nar:orv doctrine, applicable in exceptional cases, and where 'such
                                                                                                                     an
lhut gruy *ere nó¡ pled. Trial Uy
                                '
           raise
ob.iectiorr is                                                                           LLC v. T&IvI Sales & Envtl' Sys" ì76
S.W.3d 595, 605                                                                          ining party does not object to teslirnony
            but
ã'n rlre irsuó                                                                           ble ground, 'be cannot be rcgardetl as
impliedly con.sen                                                                        internal citations omitted)' In this case,
therefore, tlle matters were not tried by consent.
             to lg'fex.      Admin. Code $ 24g.15þ)e), (3). The relevant provísions of the conbolling rules have not
changed in substance sjnce lhe tinle of the events at issue in thjs case'
             r'   l9'I'ex. Admirr, Code $ 24?'2(bX3XB) lnow         $   247'2(3XB)]'

          'u l9 T"*. Admin. Code $ 247.2(bXlXÐ lnow $ 247'2(3XE)]'
          '? l9 Tex, Aclmin. Çodc $ 24?.2(bX3)(F) luorv S 247'2(3XF)]'
          tt staff alteges, too, that Mr lvfontalvo violated Codo of Ethics Standard 1.7, 19 Tex' Admin' Code
                           247.2(lXG)], by failing to                                rvritten local school boa¡d
$ 24?.2(bXlXG) [now $
policies, and other appticable state and federal [aws'                                   ily in its pleading lvhat
                                                                                                         allegedly violated.
written policies or laws, aside from olhet'provisions
             Staff flirther. alleges Mr. Montalvo "has comrnitted an act describcd in 19 f'r\C ['l'ex. Admin,
                                                                                                                           Codel
                                                      to     healtl,  sateîy, ot' rvelläre of a  sludcnt  or rninor, porent of a
                     conduct tlrit  inclicates a risk    the
                                                                                                                 (h)) establishes
                      ernplo¡ree or proltssional colleague." Tle cited rule (which is now subseclion
                                            but irnposesio   obìigalions  o0  teachers,  callnol be  violaled by  a teacher, and
                    EA,s   investigaiions,
                    is for sanction ofa leacher.




                                                                                                                         MONTALVO V. SBEC
                                                                                                                         0014
soAH DOCKET NO. 701-11"8468.8C                          PROPOSAL FOR DECISION                            PAGE 6



       The forms of disciplinary action SBEC may take against an eclucator include placing
restrictions    or   condìtions on an educator's certificate, issuing an ins<lribed            or   uninscribed

leprimand, suspending a certificate, ìssuirrg a probated suspension, and revoking a ccrtilìcats.re
SBEC and the ALJ are required to take the following factors into consideration                      in   seeking,

proposing, or makìng a decision in enforcemsnt actions:


                                 r    Tlre serior¡sness of tbe violation;
                                 .    Whether tl¡e misconduct lvas premeditated or intentional;
                                 ¡    Attcmpted concealment ofmisconduct;
                                 r    Prior misconduct;
                                 .    Whether the sanction will deter future violations; and
                                 .    A¡y other relevant circumstances or facts,zo

       If     Staff proves that an educator engaged        iu or solicited    sexual contact or a romantic

relationship with a student (tlrereby violating Standarcl 3,6 of the Eclucators' Code of Bthics), the
                                                           2|
educator' s certifìcate mus t' be permanently revoked.


D.      Sumrnary of the Evidence

        1.           Overvierv


        Statïotlèred the testimony of the follorving witnessesi,


                     a      Student      l;
                     o      Yolanda Sanchez, Student 1's mother;
                     a      Salome Sanchez, Student      I's father;
                     a      Rey Ramirez, the Rio Graude         Citi CISD Athletic Director;
                     a      Esther Guera Pena, a formcr coach rvith thc Rio Glande City CISD;
                     a      James Meguire, the head athletic trainer at the Rio Grande City          IIS;
                     a      lvlr. Montalvo, called as alr adverse wittress;



        re I I Tex, ,{dmin, Code
                                     $ 249.1 5(a).
        -'a
              lg Tex. Adrnir. Code   $ 249.1 7(c).
        2'    l9 Tex. Admin. Code    $   2a9.17(dXl).




                                                                                                    MONTALVO V. SBEC
                                                                                                    001 5
soAH DOCK-ET NO. 701-l1"8468.8C                           PROPOSAL FOR DECISTON                     I,ACE 7



                    t          Diana Gzuza-Louis, a ljcensed professional counselo¡ who provided experl
                               teslimony about sexual abuse;
                    a          Ilicarclo       an employee of the Rio Crande City CISD wþo worked
                                           Altahil
                               with Mr. Montalvo during the time period in question; atrd
                    f:         Roel Gonzalez, the superintendent       of   schools   fbr the Rio Grande
                               City CISD.


       St¿ff    s        other evidence includes, arnong other things, telephone recorcls of
Mr. Montalvo,22 a DVD and transcript of an interview of V.S. at the Child Advocacy                Center,23

and copies of greeting cards with handwrittcn notes from Mr. lvlontalvo to V,S,2a


       Mr, Montalvo testified on his own behalf and offered the testimony of the following other
witnessesl


                    a          K.r\., a student athlete who rvas coached by Mr. Montalvo and was           a
                               teammate of Student   l;
                    a          Dina Pena, a parent whose daughters were student athletes coached by
                               Mr. Montalvo and who ì¡/ere teâmmates of Student l;

                    o          Lincla Lu, an assistant track coach at Rio Grande City I{S at the time of the
                               events in question in this case;

                    a          E.P,, a student athlete tvho was coached by      Mr' Montalvo     and was a
                               teamrnate of Student l:

                               4.G., a stuclent athlete who rvas coached by Mr. Montalvo and was a
                               teammate of Student [;

                    a          Ricardo Saenz, the principal of North Grammar Elementilty School in the
                               Rio Gra¡rde City CISD, wlrere Mr. lvfonlalvo also coaches;

                    a          Baldemar Garza. an attonrelr who advised Mr, Montalvo in his criminal
                               case a¡d who is the father of a young male track athlete who gradnated
                               from Rio Grande City I-IS ancl was trailed by lv{r. Montalvo;



       22
             Sra|| s Lixhibirs 2,2A, and i,
       2t Staffs Exhibi¡s 4 and 44.
       2a
             sraft's Exhibit   5,




                                                                                                MONTALVO V. SBEC
                                                                                                001 6
                                                             PROPOSAL FOR DECISION                           PAGE 8
soAtl DocI(ET NO. 701-tl-8468.8C

                                 I(.T., a student athlete who was coached by Mr. Montalvo and                  tva.s a
                                 teammate of Student l;

                      o          Ofelia Guerra, an elementary school teacher with the Rio Grirnde City
                                 CISD who has worked wjth Mr, Montalvo;

                      a          Catherine Rubio, who is employed at North Grammar Elementary School
                                 and knows Mr. Montalvo;

                      o          K.S., who is the daughter of Ricardo Saenz and rvho is presently a stuclent
                                 track athlete at Rio Grande City HS coached by Mr' Montalvo; and

                      o          4.8,,   a student track athlete at Rio Grande City HS prescntly coached by
                                 Mr. Montalvo.


       Mr. Montalvo's other evidence includes, among othet things, tecords reflecting lús
criminal acquittal and his telephone calls, multiple rvritten statements from witnesses in this
cas",25   a televisíon interview of Mr. Montalvo and V,S., and police records concerning the
alleged sexr¡al assault.


          2,          Statements by V.S. (Student 1)


                      ¿r.        V.S.'s TestinronY...


          Student         I graduated from Rio Grande        City HS in the spring of 2008. She went on              to

college at Corpus Christi A &              M.   She is plesently still in school, is matried, and has oue cbild'



        V,S. testihed that she first met Mr, Montalvo when she was in the eighth grade and she
parlicipated in a surn.me¡ track program he coached. Begiming as a freslrman, slte ran track
throughout high school, and lvlr, Montalvo wa.s her coach. V,S.'s goals were to participate
                                                                                            in the

Olympics ancl obtain a college scholarship.2ó


        When she first started running, V.S. said, she had been diagnosed with a heart mtìlmtlr
ancl leaking heart valve. Her doctor told her not to run because, if her heart began to
                                                                                        pump very

          ?5
            ftc.-spondcnt's Exhibit 16, a writtcn stâtsmont of Erika Prart, was inadvertently admitted at the hearing.
                                                                                                                       h
is hcrcby exclnded   based  on a proper objection by  Stnft
          16   'fr. at 3 l -39




                                                                                                          MONTALVO V. SBEC
                                                                                                          0017
soAH DOCKET NO. 70r-11-8468.8C                              PROPO.SÄL FOR DECISIOÌ\                               PAGE 9



fast, she could have seizu'es. She stated that lvlr, Montah,o aclvisecl V.S,'s pat'ents that                              she

s¡ould not run track. However, V.S. testified,             "l   tolcl them if I was going to clie, that     I   would die
*i   rvould rather die at the track than anywheie else, so                     I wæ going to conlinue running
regardless." She said that her condition has improved.2T


        Accordipg to V.S,, in her junior year, she progressed                 10    the district and then the regional

competitions.2s That year only one student from Rio Grande City HS went to the state
competition, A,G. V.S. stated that she and trvo other girls traveled to Austin rvith A'G,, at
Ml, Montalvo's invitation, to ot'fet suppott during the state meet, While in Austin, said V'S',
Mr. tvlontalvo asked each girl to come into his hotel room fbr about 20 minutes, during which
time he gave each girt jewelry made by one of his re'latives'2e


        In her senior year, Student 1 said, she was trying to gain                  a   college scholarslrip through her

parlicipation in track. The track season began in February and culminated in the state rúeet in
May, and t¡e college scouts rvere watching seniors                  rryho r,vere.   competing' V,'S. and her parents

looked to Mr. Montalvo to help them with the scholarship application process' Mr' Montalvo
communicated with V,S,'s f'amily frequently. No one in'V'S,'s family had ever gone to
college,3o



        On March              t of V,S.'s senior   year, ala meet in    Oo*q        \¡,S. suflèred a hamstring injury.

A   college scout $'as present to watoh her cornpele, According                            to V'S., the injury        rnade   it
clifficult for her to walk, She testified that lr4r. lvfontah,o went with her to the school bus, where
he massagecl her leg in a:r effori to get her to a point at u'llich she could compete. Coach Lu
nrassaged her,         too. V.S, testilied that nothirrg inappropriate         happened at that       time. I)espite       the

rub downs, she was unabìe to conrpete. She also stated that the college scout talked to her that
day ancloffered her a scholarship, despite her iujury. She ar.:oeptccl the scholarship.3r


        2'-   'l't. at33-34.
        28    'fr.   at 41.
        2" Tr. at 42-44.
        )o Tr. at 45-47.
        t'    Tr, at 47-50,138.




                                                                                                                MONTALVO V. SBEC
                                                                                                                001   I
                                                               PROPOSAL FOR DECISION                        PAGE IO
soAH DOCKET NO,            701-t l-84ó8'EC


                                                                                         refer her to a
         student    rvenr on to say that, following her injury. Mr, lr4ontalvo did not
                     I
                                                              compeling at the distict meet' arid that
trainer, telling her that lhe trainer would prevent her from
                                                       jeopal'dy' She said she did rrot see a doctor'
her failure to cotnpete might put her scholarstrip in
                                                             for shots to treat the iojuty' V'S' began
but her mother look her to Mexjco once or twice a rveek
using massages, a heating pad, and ice baths for her injury,
                                                             which initially prevenÈetl her from

running, workirrg oÙt like the other girls, of eveD picking up
                                                                    her leg' She søted that

M¡. Morrtalvo would perform massâges himself,                             in a field house that had mats and air
conclitioning,l2                                              :,




      According to V,S., the massages became sexual' she slated that
                                                                             Mr' Montalvo would
                                                        dnkle to her back, incìuding her buttocks'
massage her leg (al1d soDretimes lroth legs) fronr t]re
                                                      said the massages would occur before
She testified that he would also rub her vagina. She
                                                                        happenecl in various
practice, after practice, ancl a few times befote school, and that they
                                                                sþe stated' lMhen he woulcl start
locatious. The offensive touching did not happen all the time,
                                                     him to stop, but he would say that he needed
to touch her in an inappropriate way, she would telt
to massage the eutire area, and any straying                       vvas   inadvertenl' Nonetheless, she sAid' he kept
                                                                             to get better so that
doing     she stated that she kept allorving the massages because she wanted
         it.
                                                                         rominding her of that
her scholarshìp would not be in jeopardy, and Mt'. Montalvo lcept
                                                                            V.S. missed the next
possibility, She could not afford to go to college without a scholarship''3
                                                                meet in early April'3a
three meets clue to her injury, next cornpeti$g at the district


           At                                                   v's., Mr. Montalvo offered
                some point after the massages had become sexual, said

 her some rnoney, She testified that, at the tinre, her parents were
                                                                      sÍuggli¡g financíally'
                                                                                           just been
 Mr, Montalvo,          of this fact, told her that he had 52,000 with him, because he had
                      awar.e
                                                                       plovide the money "if you do
 paid, a:rd he oould give it to her. V.S. stated he tolcl her he could
             fol'me." She saicl that she {eclinecl, saying her parents would be fine'
                                                                                       V'S' inferrcd
 .somcthing
                                                              the child Advocacy center that he
 that he was conditionìng the offer of money on sex, and told


                                                                             V'S' received, or rvho administered lhem'
           ='' Tr. ar 5l-54,62,140, lt is unclear exactly what kind of shots
 ltere   are rplèrences   in lhc cviclcncc ttl vitamin lf-12 shots'
           rr   Tr. at 54-59,64,87-

           "    Tr. ot 60; Respondent's Exhibit 22'




                                                                                                           MONTALVO V. SBEC
                                                                                                           001 9
soArI Docr(nT No, 70t-Il.-8468,8C                         PROPOSAL }'OR DECISION                      PAGE   II


hacl ot1ered money               for sex. V,S. acknowledged that, in her testimony in lvft' Montalvo's
                                                                                        just suck
criminal trial, she testified that he had told her, "We don't have to have sex. You can
oil it."35


         V.S. asserls that, in about Aplil, Mr, Montalvo raped her twice. Tho first time, slte said,
was   ìl the field houqe.           She testified that lhe two occuffences were within clays    of each odler,
some time prior to lhe regional meet (vrhich was in late          April).   One clay afte'r practice, Student I

stated, when everyone else bacl  lefl, Mr, Montalvo gave her a massage on a ¡nat in the fielcl
hor¡se, In the course of the massage, she said, he moved her "bikers" shorls to the side and
placed his penis inside her vagina. V.S. stated that she had allorvecl him to give her a massâge
because she wanted to get better an{ compete, and because of the scholarship'36



         The second alleged ocsurrence was at Mr. lvfontalvo's home. During her senior year,
V.S. statecl, she used the ho[ tub or Jacuzzi in lvft. Montalvo's bathroom at his home th,ree times'
She said that track girls did not use the hot tubs at the school, and they went to Mr' Montalvo's
house because of the $,ater pressure. On the fust occasion, she went with three othef               girls' This

was, V.S. said, the only time she saw Mr. Montalvo's wife present, The second time, one other
girl accornpaniecl V.S. The batlt accommodated two people, and the girls each used the bath for
20 minutes. They wore sports bras or bathing suit tops, and "bikers" shorts. V.S. said that, on
the third occasion, she lvent alone.37


        When she got out of the Jacuzzi, V.S. testified, Mr. lvfontalvo asked her to take otïhe¡
bíkers so that he could give her a massage. She wore a bathing suit rmderneath. He put a torvel
on the bed, zurcl s¡e lay {owl on it on her belly, According to V.S., he undid her bathiag suit af
the baok and massaged her whole body, saying that all the muscles are connected. Then- she
saicl, he asked her to turn over, bnt he dicl not re-do her bathing .sttit, so she held it over
                                                                                                hcr as she

[rned ovcr. Slie statecl fhat             he louched her breasts and kissed her body, Inoving her panties




             "   Tr. at 106-l08, 144,117"
             to Tr,   at 84-91,149-150.
             3? I'r. at 65-?0.




                                                                                                   MONTALVO V. SBEC
                                                                                                   0020
                                                            PROPOSAL FOR DECISION                               PACÈ I2
  soAI.I DOCKET NO, 701-I l-8468.8C


  aside and kissiug      ¡er vagirra. She said that     she told bim to stop, but he raped her.         ,'lhis was, said

  V,S., the second rape. z\ftenvard, she stated, she grabbed her things and ran out to her car'18


          After these events, said Student 1, she began to have suicidal thoughts. She stated                          she

  had not experienced any suicidal icleation prior to her sexual assault,-te She specifically
                                                                                              denied

" talkiug on the telephone to Mr. Montalvo           about thoughts of suicicle'ao



          V.S, compete¿ in the regional me.et held in late April in San Antonio, brrt did not qualify
  for the state meet to be held in May in Austin. She testifred that Conch Montalvo massaged her
  inappropriately at the hotel at regionals, but that, afler regionals, did not give her any more
  massages. Although she was not eligible to compete at the state meet, she traveled to Austin
                                                *8"4f also went on the tríp, According rc V,S',
  with stuclent K.T,, who did qualify. Stuclent
  Mr. Montalvo called the girls in one by one for about 10 or 15 minutes each, and he gave each
                                                                                                     a


  little present.42 V.S. said that he told her he would visit her the following year in Corpus Ckisti,
  and he would make up a story so that his wife would think he had gone hu¡ting.a3



          V.S. testified about telcphone calls with Mr. Montalvo in the spring of 2008. She said
  that he would ofìen call her. She rvould also call him because, if she did not, he would call
                                                                                                her.

  The calls occurred at night, following practice, sometimes very late, Some calls were long'
  Student     I stated that they woulcl disouss          track ancl her upcoming race's, how she needed to
  visualize     a   race irr her hcad to make   it easier, and her scholarship, Thc number of calls went                up

  quite a bit following her hamstring         i¡jury.   She indicated tlrat the calls rvere not sexual in nature,

  except that lvfr. lvfontalvo,rvould talk about his problems rvith his rvife, and how they ditl not
  ¡ave sex. V.S, also said Mr. Morúalvo would "tell evct'yone" about his nrarital problems. She
  said that most of the conversations were just him talking, and he often repeated himself'
                                                                                            There


          rs Tr. at 70-?8.
          ]e Tr. al 126,
           40
                Tr. at 850,
           ,'   The ALJ surmises this rvas student E.P., who was a witness in lhis casc,
            a2 At anorher poinr in her testimony, Student   !   s¡icl thot Mr. Montalvo talked to her for longcr than he did
  to the other girls. Tr. at 130.
           n' Tr. at91-95, 153-154,




                                                                                                              MONTALVO V, SBEC
                                                                                                              0021
soAH DOCKET NO. 701-1!-846E.8C                               PROI'OSAL FOR DECISION                          PI\GE      13




was nothing, she statcd, that he told hcr on the phone that he could not have told her during the
d"y.'o


           V.S. complainecl that Mr. Montalvo stretched girls in inappropriate ways. She described
Jeg stretches           in rvhich Mr, Montalvo was close to the girls' bodies. She saicl that the stretching
occunetl out in the tfelcl.as V,S. also stated that Mr, lv[ontalvo would snrack girls on thc bult.a6


       V.S.'s parents trustecl ancl ad¡nired Mr. Monølvo, statecl V.S, He assisted with the
scholarship, he sometimes visitcd V.S.'s home, and he once cÍtme to the house to show V,S.'s
parentsllow to rub dorvn her injured area. In mid-May, when there had been some difficulty
with getting the proper amount of financial aid, Mr. Montalvo l\'ent to Corpug Christi with V-S.
and her mother to iron out the problem, V.S. stated that she did not want him to go, and told her

mother so, but her parents trusted Mr. Montalvo so much that they insisted he go.a7


           Tbro¿ghout the spring, said V.S., she did not tell anyone about the assaults. She stated
that she r.vas afiaid to tell her parents beiause her father has a very bad temper. She also wanted

to oom.pete, and she rvas afraitl others rvould not believe her, because Mr' Montalvo had                    a   rvay   of
manipulating everyone into thinking that everything he did was okay, Sbe did not want to be
around him, but she felt she hacl to act like nothing was going on. She laughed and talked around
him, including r.vhen they were being filmed for a local telet'ision nervs story about                               her
                    a8
sclrolarship.


           In the summer of 2008, V,S. testified, she began to voice her accusations. She stated that,
in Jnnc, she told her mother that Mr. lv{ontalvo had touched her, Stuclent                   I   said that she told her

mother in English, and her mother did not really understand what she had                           said' Her     mother

calle<l he.r father,             wlro canre home ancl bccame so angry that V,S. did not want to otl'er more

           4{ Tr. at 95-101,169-170.

           '¡i   Tr., at ?g-83,
           ú      T¡..   ai lj1-136. V,S, made simjlar s¡atements in the Child   Advocacy Côlrter interview' Exhibit 4
at 8-10,
           a"
                 Tr, at J06. 108-l 10, 136.
           nÂ    'fr.        '79, 105, 134, 154-151 .
                        at




                                                                                                          MONTALVO V. SBEC
                                                                                                          o022
                                                              PROPOSAL FOR DECISION                               PAGE    14
soAH DOCKDT NO. 701-ll-8468.DC


details, Her father got a gun and saicl that he was gòing to kill lr4r, Montalvo, She did not tell
him rnore because her father hacl been in jail before, and she did not want him to do sornething
a¡d have to go back. And, she did nol. want to tell anyone else because she knew slie would be'
t¡e subject of gossip. She did call Mr. Montalvo, she stated, and told him that she had told hcr
parents what had happened, and not to bother her anymore. After that, she indicated, he ne'ver

called her again. Then, after she tvent to college, V,S. discussed these tnatters with a couttselor,
who   reporred them to the authorities because V,S, had been underage in the spring of 2008'
Now, V.S, said, people whisper about her rvhen she is out in public in Rio Graude City.ae


       V.S, acknowledged that, in the fall of 2009, she returned home and allended a track meet
at which she had contact with Mr. Mlntalvo, She denied requesting to ride on the bus rvith
                                                                                            the

teanr.5o



       V,S- also acknowledged that, following the events in this case, she made a false outcry to
the police that she had been kirlnappecl. Sbe testífiecl that sbe dicl so because she wanted
someone to stay with [er, and not leave he¡ alone, and she wanted that person's attention.
                                                                                             She

           .,That,s what I had to do to have somebody in the apafiment rvith me."5l Student 1 further
stated,

admitfed to      lyi¡g on Facebook about being pregnant i¡r orcler to              get her boyfrieud'to stay rvíth her

in an apartment because she does not like being alone'sz'


                     b,            V.S.'s Statemeút at the Chikl Advocacy Center


           Student     I was ìnterviewed by a rvorker at the Child            Advocacy Center in Rio Grande City

on   May 28,2009.53 In the interview, V.S. tleseribed evènts in the spring of 2008, This surnmary




           ae
              Tr. at I l0-l I 5.
           ro Tl'. at 157-159,
           Jr Tr. at 124-125,   She did nor iclentity wh.ose atrerrtion and company she was      sccking. l"rom the coDtext of
lhe i¡ue.rtionilg, it appears tltat it nray havc heert llcr lroyft icrrcl'
           il   'l'r. at 120. V.S. dìd no¡ further elaborate. Othcr evidcncc in thc casc indicatcs that the Facebook     post

occurrecl in the spring of 2009. Tr'. al 460-4ól     (K'A' rcstimony)'
           r.'fhc DVD      an¿ the transcripr of the interviev* ore Staffls Exhibi¡s 4 and 44.




                                                                                                                MONTALVO V. SBEC
                                                                                                                0023
soAH DocKE'l' No, 701-lr-846s.ÊC                                PROPOSAL FOR DECISION                                       PAGE 15



only sets out V,S.'s staternonts that cliffer frorn, or add to, what she saicl in her testirnony at
hearing,


         Overall, said Student             l,   the iuappropriale massages occuned 50 times or more)                                 all

Mr. Montalvo wai giving her such massages up to 4 times per day.sa The abuse occurred at the
rniclclle school f,reld bouse, .the higb school weight                 tootil, aud at bís house.ss She stated she did
not tell her parents because they would not believe her,56 She also said that,                               if   she did not kiss

Mr, Montalvo        as   he lequested, he would tqll her parents that slre was undetperforming in track,
ancl they     would get mad at her,s?


         Concerning the alleged incident in r+4rich Mr. Montalvo offbrecl V.S, rnoney for sex, slte
stated in the interview:


         And he was like uh,.,I've heard that your [sic] like really good and whatever. He
         was like I know your ..,will you evsr havs sex rvith me? .A,nd I was like no coach
         I will never do that rvith you, And he was like rvell I know your parents need
         money and sttrff, I have money, I just rvent to the bank right now, I have--$2,000
         with me. That's what he saicl íwas like no I'm not going tõ do that coach.s8


         In the intewiew, V,S..described only one incidcnt of rape: the occunence in the field
house, Her clescription was largely consistent with that of her testimony at hearing, She stated
that Mr, Montalvo told her not to tell auyone or she woulcl lose her scholarship aud be "a
nobody." She also statecl that, afÌenvard, she asked an olcler friend to buy "plan B" for                                  her.se



         With respect to what happened rvhen V.S. 'weni alone to Mr. Monlalvo's house fo                                       use the

hot ¡rb, she statecl in the interview be massaged her. She said that, cvery other time she had been
to lvfr. Montalvo's house, his wife had been present, but this time she was not there, According

         t    stafi's Exhibit 4A a¡ 16.
         tt   ltl. ar l7-18.
         36
            Id.at77.
         sj ld. at 19.
         sì Id. at ll2.
         !ç Tr. at 22-21   .   Thc ALJ as.sunrcs that "pìarr   B"   is lhe brand nar¡re or   colloqIial expt'essiort lor   a "tttot'ning-
afìer" contraceplive.


-


                                                                                                                      MONTALVO V. SBEC
                                                                                                                      0024
soaH DOCKET NO. 701 -1 l-8468.EC                                PROPOSAL F'OR DECISION                         PACE   16




to V.S., he took her bla off, then put it back on, and he touched various private parts of her body
and engagcd         ill oral sex.       She said intetcourse did not occu¡.óo



         When talking about the state track meet in Austin in May of her senior year, V,S, said
that Mr. Montalvo brought in each other girl                   1o   his hotel room to talk for about l5 minutes, but
t¡at he kept V,S. in there for 2 hours. She said that he made her hug                     ancl kiss him.Úl



         In the interview, Stuclent I                 said the first person she told about these events was her
counselor at        college. She told the counselor                 because   of the emotional shain, she indicated.
Then, she said, she told her parents in February 2009,62


         3.           lestimony of llrasmo l\lontalvo

         Mr. Montalvo began working as a teacher                      fi   1992. At first, he was a "ltolcling teaoher"
r.vithno cerlifrcation or benefits. Then, in about 1995, he received emergency certit'ication,
followed by full certification in 1997. He has been working as a full+ime teacher ever since'd3


         V.S. and Mr, Montalvo fi¡st met                      il t}e sunrmer before she entered ninth grade.
According to Mr. Monralvo, he never touched V,S. in any inappropriate way or in a way that
could have been misinterpreted as inappropriate.#


         In thc summer of V.S.'s freshman year, said lvlr. Montalvo, her doctor told her she had a
heart condition that could make                  it   dangerous for her    to run. Mr. Montalvo stated that he told
V,S.'s mod:er that,               if   she were his child, he rvould not let her       run,     IJowever, V.S.'s nrotber

replied that she was goin-e lo let her daughter do what she loved to                    do.65




         'û lcl. at 14-16, 43-46;
         6' lrí. a|34.
         6! td. at    38-39   .


         ó3
              Tr, at 725-72':.
         óa
              Ir,   at '12"1-728.
         65
              Tr. at 3'1)-3'¡2.




                                                                                                             MONTALVO V. SBEC
                                                                                                             0025
                                                     PROPOSAL FOR DECISION                              PAGE ]?
soAH DocKET' NO. 701-l l-8468.8C


        lvl¡. lvlontalvo was asked about the occasion of V,S,*s injury at the Doma meet'
                                                                                            He said

that he did not touch of massage V,S.'s hamstring because he was busy with
                                                                                all [he other events

at the meet.66 LIe stated that Assistant Coach      I¡   checkcd out V,S.'s      injury. Hc fur'ther said that
v,s.'s falher approached him       at tbe rneet after V-S. was injured. According to Mr. Montalvo,
                 .,I wanr to handle this.    I will take her to the cloctors. I clon't want bet seeing           a
her father sâid,
                                                                                       trainer, but
traineL.,, Mr, Montalvo said he told V,S.'s thúer he woulcl prefer for V'S. to see the
                                                                                      paleuts rvere
tbe father saicl the trainer rvould make her sit out. In Mr. r\4ontah,o's words, "Her
extreme on having her perform," According to             Mr. Motrtalvo, V.S,'s iather said he woulcl takc
V.S. to a doctor in Mexico.67


         Tlre college recrurter gave V.S. a scholarship contract at the Donna meet' lvfr' Montalvo
                                                                                       I 's parents, and
testified that, after the rneet, he looked over the contract at the request of Student
totd them he thought it was a good deal.68


        Mr. Montalvo furlher testified that, following the meet, back at home, he told V'S. tç
                                                                                                                go

 to the Uainer, but she refused, as she hacl in the past. Mi. lvlontalvo said that she told him
                                                                                                 she

                                                                                   he stated thât he
 was seeing a doctor in Mexico. Hcilever, at anofher point in his testilnony
                                                                                      and he also soid
 shoulcl have sent her to see the trainer, but he could not recall whethe¡ he did-so,

 that he did ¡rot send her, saying that she refused to go. According to lVIr. lvlont¿lvo, V,S' was

 afrairJ of not being allowed to participate at district in her senior        year' Mt' Montalvo also         saicl


. that, once V.S. regained her range of motion about
                                                     two weeks following her injury, he would rub

 down her hamstring. Hoyever, he statecl, he would never give ller more extensive
                                                                                                  0r

 inappropriate nìassages, He said he gave other girls ntb do$'trs, too, ovetall,
                                                                                     he aclclressecl

 V.S.,s injury with'stretching, rub down.s, ice baths, and the whirlpool. FIe denied
                                                                                     telling her to

 go to Mexico for injections. I{e said that V.S. was able to restllne competing, and in
                                                                                           lacl shc

 competed at clistrict, qualifying for regionals, lvlr. Montalvo stated that he never
                                                                                      told V'S' she

                                                            SOr\H's proceclural rules to 3o, Mr. Montalvo filed an
 arlswer                                                     allegation: "ln or around February of 2008, Student I
 injured                                                    ndeni took Srudent I to a bus and massaged hel leg at
 rhat tilx                                                  of Hearing, filed rvith SOÄH), There is no allegation or
 evideltc                                                in anY waY sexual'
         ó?
              Tr. at 355,35'l-158,360,366,369,3J0,J89,736-13s,'154,796-197'825-826'
         68
              Tr. al '194-'795.




                                                                                                      MONTALVO V. SBEC
                                                                                                      0026
soAH DOCKET NO, 70t-ll-8468.8C                               PROPOSÄL FOR DECISION                             PAGE I8



could lose her schola¡ship            if   she ,vvent to the tmirter. FIe said he just told her Ìhat the college's

conlract said if a student clid anything that might embatrass the school, the student could lose the
scholarship.6e



         As to being alone after practice with V,S. at the fìelct house,I\4r. Montalvo testified that
he dict not thínk that had ever happened. He said that he sometimes, but not frequcntly, had V'S,

or other girls stay after practice if they needed to work on something partioular. He said most of
the hamstring rub dowrs he administered occuned in the lield, and he could not recall u'hethcr
he ever rubbed her leg down in the field house, but he never rubbed her down alone in the
                                                                                          field

house after                     else had left.7o He also saicl that he occasionally gave V.S. rides home late
               "u"rylo"
at night after track meers ilr her senior year, so he was alone with her for a few minutes on those

ocsasions.?l



         Mr. Montalvo testifiecl about the students' use of his Jacuzzi. FIe statecl that there rvere
two occasions: one over spring break and one during Easter break, During those times, he said,
the whirlpools and ice baths at school were unavailable because the school persoturel responsible

for untocking the training room were not inctined to do that during school bleaks. Around the
time of spring break, Mr. Montalvo testified, V.S. was just starting to jog and participate in
practice follorving her injury, and she wanted to use the lacuzzi, She came r,vith two other girls,
Mr. Moptalvo said his wit'e was pressrt in the house while the girls used the Jac.uzzi.?2 On the
seconcl occasion, V.S. came alone during Easter break. According to Mr. Montalvo, his wife and

children were present in the bouse on that occasion, too.73




         6' 'lr.   ut 342-349,3-\8,3ótl, t'l},394.402-403,736"738-14r,'150,'l52-753,799'
         ?0                  -348,384:386, 409, 411'412, 741-742, 800-801'
              Tr. at   347
         ?r
              Tr, at 830,
          ?2 Mr, lr4ontalvo titrlJrer lestified tllaf, <lue to the s(r'ess and elllbarrassment arising out of his crilrinal
prosectttiott, lte and his wife separated followirrg his túaì' Tr' al 732"
          ?l Tr. al 394-401,410-41t, i56-160, $12-815, Bl?-320, Mr. Montaivo saicl he also sent V.S' and anothsr
girl to Balcleurar Garza's liouse for carclio aqua therapy, because he was lhe only per.son Mr. ]4ontalvo kne"v rvho
had a pool. Tr. nt 803.




                                                                                                            MONTALVO V. SBEC
                                                                                                            0027
soAH DOCKET NO. ?01-11-8468,EC                         PROPOSAL FOR DECISION                        P;IGE l9


        Mr, Montalvo denied offering V,S, or her family any money, for sex or otherwise, Ile
stated that, at that time, he was not in a position to give money to others. and it took him about

3 weeks to make $2,001),74'


       . V.S. went to the State track meet in Austin in May 2008, Although she had not qualified
f'or state, she and another girl who had not qualilied were allowed to go. Mr' Montalvo
explained that tbroughout the years, V,S. had done vety lvell, practiced, and given her all, so                it
was appropriate f'or her to attend. IJe stated lhat he met with each girl in Iús hotel loom for about
l0 minutes. during          rryhich time he kept the door   open, He gave each girl a little gift, costume
jervelry that his sistcr had made, and told eacb girl             it \Ã,as a token for her hard work and
{edicafion. He saicl that, as he talked to thern,           he Íied to be motivational and to hit on the
positiúe poínts of what they had done right and 'what their futures held.7s



        Mr. Montalvo descdbed V,S. as someons lacking in self-esteetn who needed c'onstant
attention and reinforcement. She "needed to hear lhe praise, to hear you can do it, you can do
it.,'   He indicated that she was ernotionally neetly, having to "hea¡       it and hear it and hear it"       so

that she could believe it.?6


          With respect to the phone calls, Mr. Montalvo stated that the num6er of calls with V,S.
jur¡ped in Februaly or March of 2008, rvhen she suflèred he¡ hamst¡ing iqiury. He said that the
injury was devastating to Student l's family. Her senior year was              suptrlosed   fo be her year to
shine. He stated that the injury made her feel so doun that she told him, on one occasion,                 she

had had a suiciclal tlrouglrt the previons rveek. He dicl not wa.nt to tell her parents becatlse he was
afraicl thcy rvould oveneact, especially as V-S,'s father had an explosive temper. Ìvfr, Montalvo

testifiecl that he spent time on the phone with her, reading aloud motivational quotations flom
John Wooclen (the           IICLA basketball coach) arrd talking to her about track, her problems,        ancl

horv to get into a better state of mincl. He stated that they sometimes tâlked at night, after his
children went to sleep. Mr'. lvfolrtalvo said that V.S. rvoulcl often text him, and he would call her

          1a
               1'r,ai743.
          ?5   Tr.at745,804-805. Mr'.Monraivosaidthatthejewelrycostaboutfivetoten    dollars. ld'af 33i,754'
          to 'l'r. at 728,'186.'190.




                                                                                                  MONTALVO V. SBEC
                                                                                                  0028
soAlt DocKDT             NO. XXX-XX-XXXX.DC                               PIìOPOSAL I¡OR DÈCISION                PAGE IO



back. I-Ie sraterl he dirl not talk to V.S. about his relationship with his wife, V,S' told him that
she did noi have rnany fi'iends, and he thought that talking to her rvould help her. Mr'. Montalvo

also talkecl to other girls orr tlre telephone; he identified K,4,, 4,G., l!'P., and V,C., saying that

he would talk to them about track, how to improve their performance and to train, and also about

their problems. He thought at the time that the phone calls wete appropriate, rhat he was being
helpf¡l to V,S. He felt tha[ she was getting better over time, FIe stated, "I thought I                       wa^s   rlaking

a clifference."TT



           'When girls graduated and plarured to run track at the next level, said Mr. Montalvo, he
would buy them .hottr, wind suits, shirts, and shoes that they could use for their atbletics' He
said that he did this lbr V.S,, too, but he never singled her out for special treatrnent.Ts



           lvfr. Montalvo stated that V.S.'s behavior toward him never changed. After graduation,
Mr. Montalvo aurange{ for a television interview about her scholarshíp; they both participatecl in
the interview, in *hich V.S. acted cxcited and happy. Mr. Montalvo stated that she would hug
him every day, she showed up at surnmer track piactice, and she was still behaving very friendly
torva¡d him in  April 2009 fiust befbre he learned of her accusations), whert she attended otle of
the meets, Indeed, said Mr, Montalvo, V.S, wanted to riclc with the team on the school bus to
that mee{, but he had to tell her no because of liability insurance conÇerns. V.S. still attended the
meet, he said, spending the whole day there, helping him coach several evettts,T9


            4.         Telephone Records


            lvÍr, Montalvo and Student                     I excharrgecl     about 4tl0 phone calls from lfebntary through

.lr.rne   2008. The calling pealced in March and r.\pril 2008, with about 160 total caìls for each of
those monrhs. Over tbe Febmary-through-June period,82 calls were afler'10:00 p.m.. rvith
l\4r. lvlontalvo placing 80 percent                       of the late-night calls and V.S. placing 20 percent of       thern.


            1i Tr.    ¡t404-406,728-'732,134,'156-75'r.,7't0-771,771, ,185-'t36,?89. Mr. Montalvo said he rnentio¡red to
his assi.srarrr coachcs that he rvas trying Co help \',S. out, and hc also tolkcd Ìo 8.P,, to sec ilshc could bcû'iend V.S.
I¡t. '¿t 40'? ,795-786.
             t8 'l'r. at 137,755.

            "   Tr. a¡ i 48-'r 4 9,'7 6l   -'7   64, 821 -822; Respolt detrt' s Exhibits 23 and 21'




                                                                                                               MONTALVO V. SBEC
                                                                                                               0029
                                                                 PROPOSAL.FOR DECISION                          PAGN   21
soAH DocKET NO. 701-lI-8468.8C


Overall; N{r.. lvfontalvo placecl 66 percent of the c.alls, artd V.S placed 34 percent' Most
                                                                                             of the

calls lasted just seconds or a few rninutes, Nincteen oalls lasted over a half-h<lur, a¡rci 4 calls
laste<l an hotr or more. All calls between lvfr. il4ontalvo ancl V.S. enclcd in late June'8o



       5.         TestimonY of Otber'Witnesses


                  î.        Student    l's   Pnrents

        yolandø. Søttclrcz, V.S,'s mother, testified that she knew and trusted                        Mr, Mont¿lvo,8l
S¡e stated that, when her daughter injured her harnstring, he told them that she should not go to
the trainer because collegos, when they award scholarships, look to see if a student athlete lns                       zur


injury on her record.82


       Accordilg to Ms. Sanchez, Mr, Montalvo helped V.S, r,vith the papetwork for her
scholarship and even 6avelcd to Corpus Clhristi with them to meet with representatives of the
           Ms, Sanchez stated tilat V.S, has not r¡,anted Mr. Montalvo to go with them, but Mr. and
"óll"g..
Ms. Sanchez insisted he go to hclp with the scholal'ship                   issues,83



       Ms. Sanchez said that she saw Mr. Montalvo slap V.S.'s bottom on two occasìons at her
home. The first time, she said, v.S. got upset and told lúm to stop. Ms, Sanchez said that she,
too, asked Mr, Montalvo to leave V.S. alone, and he jttst turnecf arouncl ancl left. The second
time Mr. Morrtalvo slapped V,S,'s bottom, Ms. Sanchez stated, occurred on the same day.8a
Ms. Sanchez said that she saw Mr.. Montalvo poke V.S. in the ribs, and V.S. becarne upset.85
Ms. Sanchez also said that V.S, stopped rvanting to go to practice alone, so Ms, Sanchez wor¡ld




        Ec                                                  Exhibirs 4 and 5'
             Staffs Exhibits 2and3; Respondenf          s
        Er
             Vfs. Saochez testißed through ân irrtetpreter,
        8'Tr.af179-1ß0.
        tt   Tr, at 184-l 85.
        u    Tr. at lBl-182. lvls. Sanchez   <Jid   not explain whether N4r. Mon¡afvo returned to thc bouse-
        t5 'I'r. at 185-186,    192.




                                                                                                               MONTALVO V. SBEC
                                                                                                               0030
soÄH DOCKET        NO. 701-ll-84ó8.DC            I'ROPOSÀL FOR DECISÏON                    PAGß22



send one of her sons along. In acldition, V,S. did not want any pic1rlrgs taken with
                                                                                       Mr, Montalvo

at her graduation.s6



       O¡e day, said Ms- Sanchez, V.S, came home from Mr, Ivfontalvo's house, where she had
been using flie Jacvzzi for the second time. V.S. came into the house rwapped i¡ a torvel
                                                                                          and

crying, but she rvould not say wlry she was so distraught, When pressed, said Ms' Sanclrez, V'S'
told her that she was upset about her leg injury,s7


        On anotlrer oÇcasion, said lvfs. Sa,nohez, V,S. was late coming home. She called V.S.
repeatedly and got no answer. According to Ms. Sanchez, she called Mr. Montalvo, who said
that V.S, was withhim. Ms. Sauchez saicl she could hear V,S. crying in the backgror¡ncl, and
Mr. Montalvo said it rvas because she was upset about her leg injuri,. When asked r¡r'hat the
matter was, V.S, told her mother it rvas her leg.88


        Ms. Sanohez testified thar she knew Mr. Montalvo talkect to V.S. late at night for long
periods, She would ask her daughter why there r,t'ere such late calls, and she said that he was
giving her advice for the next meet arlrl that sort of thing. lvfs. Sanchez said that Mr. Montalvo
would also t¿llc to V,S. about his problems wjfh his wife, and woulcl even call Ms. Sanchez      and

tell her, too, about his marital problems'8e


        Accorcling to |v{s. Sanchez, she first leamed about what had happened to V'S' from her
husband. After V.S, went to college, she told her father that lvlr. Montalvo had assaulted her'
Ms. Sanchez testified that V.S, and her father returned home that day, and Mr. Sanchez told his
wife that Mr. lVlontalvo had raped their daughter. Ms, Sanchez said that she fainted, and her
other children callecl their grandrnother to come over because theír mother wâs not doing well.
Ms. Sanchez slafecl this was the first time that V.S. hacl strggcsted that Mr. Montalvo hacl done



        8o
             Tr. at 192-193.
        tt Tr. ot lll2-lll4.
        88
           Tr. at l8?.
        ¡e Tr, at I 38.




                                                                                          MONTALVO V. SBEC
                                                                                          0031
soAII DOCKET          NO. 701-Il-8468.8C               PROPOSAL FOR DECISION                        PAGE 23



anything wrong, She did not recall any timc in the sumrner when V.S, said that Ml. Montalvo
had touched her and Mr, Sanchez got his gun out,eo


         Solome Snrchez, V.S.'s father, testified       tlat he h'usted Mr. Montalvo "100 percent"       and

that he was tike a seconcl father to V.S, Mr. Sanchez said he talked frequently with
Mr.lvfontalvo to keep up wifh his claughter's track activities.el According to Mr, Sanchez,
lvlr, Montalvo assisted the family in all aspects of obtaining a college sclrolarship for V.S., who
was the first person in the family to go to college. The scholarship, he saìd, meant a great deal to

v.s.e2


         After V.S. injqred her hamstring at thÊ Donna track meet, said Mr,                         Satrchez,

Mr.lvlontalvo would not let V.S, go to the trainer, Mr. .sanchez stated that Mr. Montalvo saìd
going to the trainer could affect her soholarship, and V.S.'s rehabilitation would be managed
instead by himsolf ând V,S,'s tnothÊr and father, According to Mr. Sauchez, this conversation
ocçurred when Mr. Montalvo same to V.S,'s home to discuss the scholarship contract,
                                                                                    just after

the Don¡ra meet.Mr. Sanchez denied telli¡lg lvfr, lr4ontalvo that he would handle his rlaughter's
injury himself. Mr. Sanchez testified that his rvife took V.S, to Mexicq for B-12 shots on
N4r, lvfontalvo' s advice,e3



        Mr. Sanchez also stated that Mr, Montalvo offered to lend hir¡ $2,000 to get tluough
difficult financial times. While he appreciatecl the offer, said Mr, Sanchez,, he did not accept'
N4r. Sanchez stated that V.S. never        told him that iMr. Montalvo had off'erecl her money.ea


         Mr.      Sanchez testitìecl that, while she knew thal his daughter spent time talking to
Mr. Montalvo by phone, he was unawafe of the frequency or length of the calls.ej


         s     Tr. at ls8-191, 194.
         er
               Tr. at ?01,221.
         e2'
               Tr. at2D],215.
         nr
            Tr. at 205-206,842-846.
         oo'r'r. or 208, 225 -226.

         "    Tr. ut 2Cl-202.




                                                                                               MONTALVO V. SBEC
                                                                                               0032
      SOAH DOCKDT NO, 701-n-84ó8.ÈC                                           PROPOSAL FOR DBCISION                                PAGE 24



                 One day early in thc summer break in 2008, said N4r. Sanchez, his wife called him at
      work and said she needecl                  1o tall<   to hirn about sornething imporlant concetning their dauglrter
      arrcl   Mr. lvlontalvo.       rMr.. Sanchez went home, ancl V.S,                    told him that Mr. Montalvo had totlched
,,,   hor. lvfr.      Sanchez said he grabbed his gun and pressed V.S, to tell him                                  nore'   She   just kept

      crying, however, and would not say                            more. He did not call               the. police because       V.S'   was

      enrbarrassed ancl did not want anyone to know what bad happened. Mr. Sanchez said that he had

      no further contact with Mr. Montalvo after this time,eó



                 Then, said M¡. Sanchez, after V.S. bad gone to college in Corpus Christí, he went to visit

      her. He kept asking her what had really happened. They were driving, and they pulled ovei,                                         and

      she fìnally "bustecl" and tolcl him that Mr. Montalvo had penetrated                                   her.   Ìvfr'. Sanchez said he

      took V,S. back home, called a f'amily meeting, and contacted the police.eT


                 lr4r, Sanc[ez stated that he was not aware of V,S.'s ever telling him anythitig tlrat was not

      true.98



                            b.        Diana Garz¿-Louis' LPC


                 Ms. Galza-Louis is a licensed professional corurselor specializing in sexual                                        abuse,

      counseling both offenclers and .rictims. She is a licensed sex offende¡ treatment provicler, and
      she has been practicing counseling .since l984.ee Shc                            þstified    âs an expert witness in this case.



                 Prior to her testimony, Ms. Garza-Lor-ús reviewed Staffs petition and Mr. Montalvo's
      an.swer    in tlri.s'case, police records, the DVD (ancl transcript) of the inlerview of V.S, with the
      Child Advocacy Center, a CPS report, oharts concenring phone calls between Mr. Montalvo and




                 nu Tr. at ZOg-211. Mr.              Sanchez stated       that if V.S, had "callecì other people," lte rvould have killed
      Mr. Montalvo. Tr. a|224.            k   is not clear to the   ALI   rvhat he nleatu by tlìat statemer)t,
                      'lì'. ar 2ll-214.
                 "
                 es'1r..a1223.
                 ee
                      StafPs Exhibit 7,




                                                                                                                              MONTALVO V. SBEC
                                                                                                                              0033
                                                          PROPOS¿\L F'OR DECISION                                 PAGE 25
soAH DOCKET NO, 701-l l-8,168.8C

                                                                                         a television
V.S,, the testimony of V.S. in the crirninal trial, unspecified \Nitness statemenÌs' and
interview of V.S. and Mr. Montalvo concerning her track scholarship,J00


       Ms, Ga¡za-Louis fourd V.S. to be believable. According to Ms, Garza-Louis, V.S.'s
                                                                               experienced by
confusìon about some cletails of events was consistent with the disassociation
                                                                          periodic display's of
sonre victinrs of .sexual abuse. Irurther, said lr4s. Garza-Louis, V'S,'s
         in her taped intewiew were consistent with the behavior of a victim of abuse wbo
                                                                                             is
emotion
trying to be strong but succunrbs, at monle'lts, to saclttess'l0l


       In addítion, Ms, Garza-Louis indicatecl that V,S.'s clescription of Mr. Montalvo's actions
matolred pattems of sexual abuse involving groomi¡g' secrecy, and
                                                                        manipulation' Ms' Gana-
                                                                                irrteracting with the
Louis stated that sexuol abusers often begin to set up a situation for abuse by
                                                                                    gave her' and
victim in a caretaking lole, She pointed [o the massages V,S. said Mr' Montalvo
                                                                                    said, a, sexual
lús lrelp in obtaining the sc.holarship she so wanted. In this'way, Ms. Garza-Louis

abuser creates an atmosphere of trust in which the next step                  -   sexual contact   - will   not seem so

shocking. S¡e s¿id that secrecy, such       Mr. Montah'o's telling V'S' not to go to the t¡ainer with
                                              as

her i'jury, is also often part of the equation. And, she stated, the world of athletics,
                                                                                         with ils close

relationships and physical contact, is an envi¡onment especially suitecl for this kind
                                                                                             of abuse'

She views V.S.'s high degree           of need for attenlion and cate, her lack of close friends, and her
                                                                 'fhe anxiety, cl.epression, and loss
ctesire not to disappoint as making her particularly vulnerable.

of interest in 6ack reportecl by V.S,      are typical reactions to       abuse'102                         i"




         À4s, Garza-Louis said that fhe       yearlong delay belbre V,S"s oulcry does not diminish her
                                                                             their experiences, ìn
creciibility at all; manv sexqal abuse victims wait some time before voicing
part because they feel shame ancl embanassment,l03 V,S,'s continuing to seek Mr,
                                                                                      Montalvo's

company and act nOrmaììy, even after thc onsct                  of thc   abnse, also reflectecl a knowu pnfiem
                                                                            to repeat a harmful
among victims, referred to as "repetition cotnpulsion"' which is a tendency

          r0o  Tr. at 4tg-120. Ms, Carza-Louis   cli<l not spcak 1o anyotrc   involvcd in this mâtter' nor did she hear any
 of tbe testirnony itt tltis case. Id. nI440.
          tct 'l'r. al 422.
          !02 Tr. al   ,123-428,429'13l'
          iur Tr. al 42&-429.




                                                                                                                 MONTALVO V. SBEC
                                                                                                                 0034
soAH DOCKET NO. 701-ll-8468.8C                                PROPOSÂL FORDECISION                           PAGE ?6



situation    in    an atternpt to correct      it ps¡rhologically.l0a Also,         N4r. N4ontah,o's popularity and

standing in the community do not meân that he was incapable of c.ornnritting sexual abuse,l0s


      Ms, Garza-Louis saw no motivation fbr V.S. to make up these charges. She said that
some people may fabricate charges in orderto gain attention, but she sav/ no sign of that inthis

case. In fact, she noted, the attention V.S dial receive as a result of her accusations was negative.
in that she suffered rejection in the community'106


       On cross-examination, Ms. Garza-l,ouis ackltowledged that there ale indications in the
materials she reviewed that V.S. is not considered a trustworthy person! and that she had lied in
the past in a manipulatit e mannçr.107


                                  Rio Grande City CISD Teachers and Coaches


          Rey RamireT, has þeen            with the Rio Grande City CISD for 16 years, and is presently in
his sixth year as alhletic director for the rlistrict. He has served as a coaçh for 13 years,lo8


          Aócording to Mr, Ramirez, while CISD coaches                      *.   no* tolcl not to n¡b down    students

ancl   to let the trainers do it, no such policy existed in 2008.rot              FIe testifiçd that the. coaches have

been told that        if   an athlete is injured,   it is protocol that   the trainer be contacted, so that the hainer

can refer the athlete to the doctor ot provide first aid'rl0




          roa
              Tr. at 43 I 433.
          tts Tr, at426.
          l's Tr. ar 433-435.
          ro7    Tr. at 439-4,10,442. The ALJ sur¡¡ises tbat the nlaterial to which lvls. Garza-Lottis refert'ed was, at
leasr in par1,   V,S.'siestimony utrdet cross'examillation at the crin:inal trial'
          ro8
                 Tì-. at   210-zJl.
                                                                              cannot stretch atl]let€s, but that they
          'oe Tr. ur 2i4,246,254-255. He said therc Ìs no policy that coaches
shoutdjnstusetheirbestjudgmentanddoitinarvaythatdoesnolapp€a¡inappropriate.                    Tr.at246'
          t'o 'fr. aÌ 234-235,242.




                                                                                                           MONTALVO V. SBEC
                                                                                                           0035
soAn DocKIJT NO. 70l-tl-8.168.8C                                PROPOSAL FORDE,CISION                       PAGE 27



        Mr. Raurirez stated that coaches are acìvised rrol to give students rides home,lll and he
cloes not believe it is appropriate for a coach to allow a stuclent ðthlete to use a Jasuzzi in the

master bath of the coaclì's Jrouse.l12 I-Ie,stated tlrat over 400 calls with a stucfcnt in a four'month
period is excessive and not appropriate, although he further said that the only thing that would
make phone calls problematic is inappropriate content, He explained that                   if the coach is trying to
help the student progrcss as an athletc, phone calls wor¡ld not be a problem, although he said he
was a "little bit concerned" about carrying out this kind of rvork on a daily basis outside the
context of practice sessiolts.l13 Mr- Ranlirez stâte that, rvhile there is no n¡le against it, a coach's
being alone in a hotel room with a student is not a good idea, and a student could make a false
accusation about impropriety in such a circumstance,l!4


        ì\{r. Ramirez said that he has worked with Mr. Montah'o for about five years, and                        has
                                                    j
never seen him clo anything improper,rr


        Esther Guerra Pena was a coach with the Rio Grande City CISD for l0 years, her last
year being     2007. She clid not           ooaoh with   Mr. Morrtalvo in 2008. She is now the head secretary
for the athletic departrnent of the juniol and high schools.r16


        Ms. Pena testified that, through her coaching, she knetv V.S.                  a¡rcl   had daily oontact with

her in,2007, although i\4s- Pena stated,                 "l   didlr't k¡ow her-klrow her. I just..,knolv her as a
coach," Ms, Pena believes that V.S. is a trtrthful person.llt


        Ms. Pena also lcnows Mr. lvfontalvo, having coached with hirn for four years''It She said
thaf he was a .strict coach, and respected, especially because he had so many athletes he had
,+-+-;Æ
        )tt Tr. at232.
        tti    'l'r. ar z,fl   .

        rrt Tr. at 241-242,247,256-25v,
        tta 'I'r. at24l- 242,245,252'253'
        trt 1r. at 248-251.
        tt'i 1'r, al26 l, 2b8-269.
        t   t''fr.   ut 261 -262,   27 8.

        ltt   Tr. a¡262,




                                                                                                         MONTALVO V. SBEC
                                                                                                         0036
soÄH DOCKET NO. 701-11'8468.8C                               PROPOSAL FOR DECISION                              PÅGE 28



known since they were very young. People obeyed him.)19 However, she said Mr. Montalvo's
neth<¡d of stretching the legs of some female athletes ditl not look appropriate ('even though the
mechanics of the stretching rvere fìne). z\ssistant coaches nrentiolled it to lvlr. Montalvo. Sone
girls refused to be stretched by him, but the girls he had coached sirice they were very young
were comforlable with it'120 Ms' Pena also said that vh. Montalvo would slap girls "not on their
btrtt/burtt," bnt    "in   betr,veen the   hip and the butt" or "ncar" the butt, in a ma¡rner that said "Go            get

thern" or "Good luck, good job," He did this ',vhen the parents were present, but a coach from
another school once said it looked bad. Ms. Pena indicated that tlre propriety of this conduct was

something that people could have different opinions about.l2l


         James Meguire is the head athletic trainel at Rio Grande City                         HS.    He has held the
position since 1998, and is presently licensed by the Stale of Texas as a trainer,r22 His job is to
recognize, assess, treat, manage, rehabilitate, and recondition athletic injuries under the direction
of a licensed physician,           Þle knows Mr, Montalvo, rvho started working                 for the district in    the

early nineties. Mr. lvfeguire testified that Mr. Montalvo, although an educ.alor, is not a licensed
trainer and therefore cannot prâctice athletic training.tzl


        Mr, Meguire testified that it has always been the Rio Grande City CISD's policy to repofi
injuries to the athletic trainer. He said that the coaches are supposed to talk to the parents. If the
trainer is uravailable ancl the parents want the child to be seen iurmediately, they can take the
child to the doctor, but the coache.s usually harre the children go to the trainer first for the
coordination of insurance papenvork, Parents can clecide to take the child to the doctor instead
of to the rrainet', take the child to Mexico f'or shots (which, Mr,lr{eguire said, is conrmon), ordo
nqthing at all. According to Mr, lvleguire, Mr. Montalvo is arvare of procedure.s and usually calls
the trainer when a snråent athlete gets              hurt. If a student with       an injury is not reported to the


         I.re
                Tr. at 263-264.
         f   2t Tr. at 264:26i,2'10,2'12. Ms.   Pena said tbat, after about 2005, there were no student trainers to stretch
athietes, so lhey vrould ask thc coachçs to do it,

         '2r fr,    at 26'1-268,272-275.

         "'     Tr. at 284-285. Mr. Meguire also worked as a lrainer for the Rio Grande Ciry CISD from 1990 to        1991
ld, at 284.
         ti! -lr.   at286-258.




                                                                                                             MONTALVO V. SBEC
                                                                                                             0037
                                                            PROPOSAL FOR DECISION                     PAGE 29
so^H DOCKDT NO. 701-ll-8468.8C


trainer, the afhlete may not get adequate medical attention, may not be able to conrpete at
ma-rimum ability, antl may suffet from prolonged injury'l2a


        According         to lvlr. it is not appropriate to treât athletes at home' He
                                        Meguìre,
oharacterized such a practice as wìethicàI, stating that it l'opens you up to liability and
accusations, and     it's     an inappropriate place to clo treatments."l2s FIe stated, however, that there is

no actual rule against it.126


       In general, said Mr. Meguire, he is careful in the way he treats female athletes, limiting
his physical contacl and avoicling stretching and rub dorvns to head off any accusations of
inrpropriety. He uses stuclent t¡ainers or his female aide for muc,h of the necessary physical
contact, This polioy is not written, however.l2T


        Ar     one point, Mr. lvfeguire talked               to Mr,   Montalvo about stretching the girls,

¡4r. lvleguire had never seen Mr, lvlontalvo stretch his athletes, but two assistant coaches
rnentione¡l to Mr. Meguire that             it   lookecl inappropriate. Mr. I\4eguire indicated that there ltad

bee¡ an earlier inciclent with a Rio Grande City CISD assistant trainer who had inappropriate
relationships with female students, and there was a need for caution because the athlstic staff was

under scrutiny. lvfr. Meguire's corlcern was the possìbility that sonreone rvbo did not like the
coach could make an accusation that he was doing something                     \\rong. Mr' Meguire    saicl that

stretching the hamstring rnuscle involves pulling tlre athlete's leg up, putting the sEetcher's head
near the athlete's groin area, and it looks inappropriate even when done properly, Mr. Meguire
tokl Mr. I\,lontalvo to be careful,         ancl he repliecl that he woulcl take the matter under advìsement.

Mr, Meguire. said that he is not Mr. lvlontalvo's supervisor. He also noted that the stretching was
part of lvfr, lr4ontalvo's rouline as a coach, and coaches do not easily change tlteir routines.
lr4r. Meguire said thele was no written rulc about male coaches stretcbing female athletes'128


        r24
              Tr. at 288-294,328.
         rzi Tr. at 295-296.
         t2Á Tr. at 327   .

        r'? Tr.   at 296-291    ,332.
        '2ß Tr. at 301-303, 318,320-323.




                                                                                                    MONTALVO V. SBEC
                                                                                                    0038
                                                                PROPOSALFOR DECISION                            PAGE 30
   so^H DocKET             NO. 701-ll-84ó8'IìC


                                                                                                            n¡b
               With respect to rub clorvrs in particular, ìt4r. Meguire said that it is fine for a coach to
              an athlete before a competition, but it is not appropriale for a coach to massage
                                                                                                        or ntb
   down
                                                                                              of a
   down an injurcd area as a fonn of therapy. He stated that someone lvithout the expertise
                                                                                          and that
   trainer would lack the ability to discern whether an injured a¡'ea should be massaged,
   massaging an acute.ly injured tlr inflarned alea call delay healing and
                                                                           prolong                  pain' He also     saicl

   that, in his clepartment, females rub down females,l2e


               Mr, Meggire testifiecl that       the.re were   whirlpools available for Mr' Montalvo's use at all

   times.¡3o Flowever, the faining room is not open to the coaches over spting heak and
                                                                                               Easter

                                                                               the room up,l3l
   break, although the coaches cur call and get the trailtels to come and open


               Mr. Meguire is familiar rvith V.S. because she was one of the top athletes at Rio Giande
       City HS.' She came to the trainer for treatment of an injury to her "quad," a calf injwy, and
                                                                                                     shin

       splints, She came to the h'aincr on April 1,2008, and received some attention to her
                                                                                                quad and

       shin splints. She did nor come to the tfainer for a hamstring injury.l32


               Llnrla Lu is presently a teacher in Mission, in the          Sharylzurcl Independent School       District'
                                                                              years, including the
       She had previously been employed at the Rio Grânde City CISD for three
       2007-2¡0¡acaclemic year, where she coached track as zut assist¿nt to lvlr' Morrtalvo.r33


                  Ln testified that she knew V.S. According to Ms. Lu, V.S. was not lrustworthy
               i\,Ís.

       bec¿use "her stories ,¡,ould alWays change." Further, said Ms. Lu, V'S' had
                                                                                   a reputation for
                                                                                        i:rappropriate
       being untnrtht'ul,r3a Ms, Lu stated that she never saw Mr. Montalvo do anytlring
       with V,S, or any of the other girls-li5

.ffi
                tze f'r. at à01-301. He statecl that it is an unrwitten rule in hís depafitnent (the traíners'departrnent at
       Rio Granr.le City HS) that lnals rrainers not be atolle rvith female alhlstes. Icl' al313-120,
                iro Tr. a( 3lo-312,

                '3r Tr. at 329,     lî   t.
                t12 ^lr
                        . at 29't -300    .


                tr3 'l'r', at 49?-499.
                ¡3n
                    Tr. at 5oo
                i3r 'l'r, at 5oo.




                                                                                                              MONTALVO V. SBEC
                                                                                                              0039
so/{H DocKET               NO. 701-l l-8468.8C                 PROPOS,,\L FOR DECISION                          PAGE 3I



         r\s to st¡etching, Ms. Lu said that she saw Mr, Montalvo stretch girls, which rvas not
inapplopliate, She heard no complaints about it.l36


         Ms. Lu also saw Mr. Montalvo give girls rub dowrts, and saw no prob-lem with the
practice.l3T Ms, Lu further stated that she had seen Mr. Montalvo give V.S. rubdowns at the fìeltl
                                               138                                      ptactice until the last girl letl,
house, on thc mats, once a week,                     Ms, Lu said that she stayed   aû

but then saicl she did not stay every single time.l3e lvls. Lu herself gave V,S. massages while she
was injured, after she told Ms. Lu that she was seeirrg a doctor in Mexico.la0


         Vy'ith respect              to phone oalls, Ms. Lu rvas aware that Mr. lvfontalvo spoke with V.S.
Ms.   Lu thought it might have been daily                    because Student   t   had     "a lot of   issues," wanted

attentiou, and had voíced an intent to commit surcide, As a result, said Ms, Lu, she did not
believe there was anything wr.orig with Mr. Montalvo's talking                     1o   V.S. orr a daily basis and for
long times, She statecl that coaches use positive reinforcement to help their student athletes
succeed, a¡d commtmication is                  key,lal Mr. Montalvo would read inspiring quotations to V.S.
ancl discuss them rvith her; Ms.              Lu said, "I thought it was great."l42 Fr.rther, she suggestecl,        âs to

tþe length of the calls, V.S. corild lixate on sonrethittg, at times going "to the extreme."l43 And,

according to Ms. Lu, Mr. Montalvo lived in a rural area with poor telephone sen'jce and frequent
                                                              l4
intenuptions in service during a convet:satiott.




         13ó
               Tr. at 500-501.

         '3t
               'fi.   ur 501-502.

         '10 Tr. at        5   ! 8-520.
         t1' Tr.      øL   520.

         'to Tr. al 520-522.
         ;'r
           Tr, at 502-503, 5l t, 5t4-5 15. Ms, Lu said that, when a student spcoks of suicide. it should be reported
to solneone. I-lorvever, she also indicatsd that she Cid not ltnow whether to believe any slatetllenls by V.S. to
M¡. Montalvo about suicide, becausc V.S. "cons¡antly chauges her stot7" and says things just to get attention /d. at
5t2-5 13. Ms.LLr thoughttharMr.Montalvo'sworkwithV.S.wasenoughtomakcsurcshcdidnotcotnmitsuicidc.
Id.al5l5.
         lt2 Tr. ¡t 515.
         rcr
               Tr. ar 513.
         roa   'l'r. at 514.




                                                                                                             MONTALVO V. SBEC
                                                                                                             0040
soAll DocKRT            NO, 701-l l-8468.8C                                  PROPOSAL FOR DF,C¡SION                ,   PAGE 32



        Ms. Lu recallecl V.S.'s hælstring injury at the. I)onna rneet in 2008. She said that she
went to t[e school bus and checked the irijury. lvfs. Lu stated that she concJuclecl V'S, needed to
see the trainer', and she tolcl tbis to                    V.S, Ms, Lu          sajd she was nol present when Mr. Montalvo

discussed the matter with V.S,'s parents) rvho rvere in the bleachers. V,S, went trp into the
bleachers and spoke to her parents, Ms. I-u said that Mr. Montalvo referred \¡.S' to the trainer,

However, V.S. did not, saitl Ms. Lu, seek out the trainers. lvls, Lu said that she did no[ lollorv
V.S, to make sure she went to the trainers. She stated, "[W]e just say, 'Go to the fraincr.'
Whether or not she shows up or not, it's out of my hands." She said it was protocol to refer an
injured shrdent to the trainer, but it was up to the student ancl the pat'ents to acnlaily decicle to go
or not.laS


           Ms. Lu stated she never notiçed a change in V,S,'s cletneanor toward Mr. Montalvo in the

spribg of 2008, The following yerir, in the spring of 2009, Ms. Lu said, she wâs present at a
track meet at Mission. She stated that V.S. was there, having apparently come on her orvn'
Ms,   Lu   stnted that V.S. was              "riglrt next to" Iúr, Morrtalvo, seeking attention frorn hirn                 ancl

others.la6



        ln       a   written statement, Ms. Lu said that Mr, lvlontalvo was prol'essional, conscientious,                     a

role model to his colleagues, attd meticulous as to rules.laT


        Ricardo Snenzis in his 12ü'yeat                             as the   principal at Nortb Grarnmar Elementary School in
Rio Grande City.r48 Mr, Montalvo has been a P,E, coach at the school throughout Mr. Saenz's
tenure there. Mr. Saetrz stated that there has never been an occasion at the elementary school in

whir:h Mr. Montalvo engagecl irr misconcluct or clispla¡'ccl a lack                                  of integrily'¡4e    About




           rai Tr. at
                      -s04-508, 515-5 18,        521   ,   52'1 ,

           rao
                 Tr. at 508-5 I 0.
           I"r   Re.sponde.ut's   Exhibit I l.
           t'8 Tr, at   620-621   .


           tat 'l'r.
                     at 622.




                                                                                                                  MONTALVO V. SBEC
                                                                                                                  0041
                                                                 PROPOSAL FORDDCISION                                  PAGE 33
soArr Docl(ET NO. 70I-t l-8468.8C


Mr, Monmlvo, Mt', Saenz stated, "[-l]e's a good man...I'Ie ukes his
                                                                    job very seriously and                                  he

does a good job."l50



      Furt¡er, stâted Mr. Sacnz, all three of his childreu have been coached by Mr. Montalvo.
Mr, Saenz's daughler, K.S,, who is also a witness in this case, was coached by Mr. Montalvo,
Mr, Saenz st¿ìted that he tlusts lvlr. Vlontalvo arouncl his daughter,lsl


      Mr, Saeua is accluainted with V,S, She was alound ûre eleméntary school in the sunrnrer
of 2008, working out ancl preparing f'or college track. He stated that V'S' seemed very
comfortable with Mr' Montalvo during that time.l52


         rilhen asked about phone call.s between Mr. Montalvo                       ancl students,   Mr'   Saeuz stafed that

there were phone calls betu,een his daughter and Mr. N4ontah,o, but not over 400 calls. He
                                                                                              noted

                                                                                             fo call
that, when he t¿lkecl lo Mr, lvlontalvo, the phone sornelimes got discÒrulected and they had
each other back. Accorcling to                  Mr. Saenz, lvfr, Montalvo lived in an area whete the               telephone

gets clisconnected fiequently.               Mr.   Saenz stated that so many phone calls seem excessive, but to

assess   if there was impropriety, he would want to know what they were about.l53


        Ofelía Guena and Catherine Rubin are Rio Grande City CISD employees who
participated in two pfayer meetings organize<j in the spring of 2008 by Mr. Monlalvo or his
sister. Perso¡s prayed              f'or fhvoraþle outcorles f'ol V.S,, f'ollowing her injury, in upooming track

meets. Mr.. Guerra and Ms. Rubio stated that they observed V.S, interacting comfortably $''ith
Mr, ltfontalvo,lsa


         Rícardo A¡tahd              is an employee of the Rio                Grande Cit)' CISD w-ho worked ruith

Mr. Monralvo in 2007-2008. lr4r. Altahìf stated that Mr, þfontalvo said V'S, had mentionecl


          r!0 Tr. at 672-623, See also Respondent's Exhibit l9'
          ttt   Tr. at 623.
          tsz Tr. at (s2J-6)4.
          rrt' Tr. at 644-649.
          rr,                       -fhese
                ï'r.. al 689-?01.            witnesses' rvritten statenrents are at Responclent's Exhibie l0 and 17.




                                                                                                                 MONTALVO V. SBEC
                                                                                                                 0042
soAI{ DOCKET NO. 701-lI-84ó8.DC                           PROPOSAL F'OR DECISION                              PAGE 34



suicide. About 30 days later, Mr. Montalvo said that he               wa.s   still talking to V.S., who continued
to have problems, lvfr. l\ltahif told the school counselor about V.S.                   because, he said, thal is

protocol tvhen a student [a]ks about suicitle, although tlrere is no written rule to that ei'Tþct.lss ln
a   written starement, lvfr. Altahif spoke highly of Mr. Montalvo      as a poach and educator,l5ó




          Roel Gonzalez is the Superintendcnt of the CISD. He testified that Mt. Montalvo lvas on
¡1vo'years of paid administrative leave pending his criminal l¡ial, and upon his acquittal u'as
reinstated as a reacher with the CISD. Mr. Gonzalez further stated that,                 if   he heard that a tcachcr

had macle multiple phone calls to a student and allowed a studeni to use the Jacuzzi in the
teacher's own master bath, there would be cause                      to initiate an iuúbstigatiott; hov,'ever,
Mr. Oonzalezwent on to say that he would need to gather evidence and look at all the facts
before cleoiding to take any action. Specifically as to the phone calls, he stated that it would be
important to know what they were about, He^said.that not every mistake in teachJug is a matter
for punitive action, and sornetimes a teacher just needs to be counseled to do something better
the next time,        Mr, Gonzalez said lhat it is protocol for an injured student            athlete to be sent to the

trainer. He went on to say that, rvhile parents are part of the decision making team concerning
lvhether to go to the trainer, they are not the sole deciders.l5T


                          d.      Rio Grnnde City HS Students and Parents

          X.A.       graduatecl       fiom Rio Grande City HS in 2007 and went on to college at                     the

Unìversity of Texas at San Antonio. Mr, lvlontalvo was her coach tluouglrout her public school
career, starting           in the first grade. He is also her godt'ather; she asked hirn to               become her
                                                                                                        ls8
godfather for her Catholic confirmalion, when she was a sophomore in high school,



          K,A. has known V.S. since middle school, and they were teammates on the lrack team.
They were friends throughout school, zurd remained tiiends aller they both rvent to college,

        r'5 Tr, ar 851¡-860. Mr. Altahif s test¡lnony suggested tbat Mr. ì\4outalvo said V,S. had talked about stlicide
more than olrce, but it is not entirely clear. Rcspondent's Exhibit 7.
          r5ó
                 Rcspondent'.s Exhibit 7.
          ts'"
                 Tr. at 864-878.
          l'tt Tr.   at   45l, 460.




                                                                                                          MONTALVO V. SBEC
                                                                                                          0043
                                                                PROPOSAL I'OR DECISION                       pÄcE   35
soAH DOCKET NO. 701-l l-84ó8.8C


Nonethetess,          K.A. testified, she kept V.S. at        a distancc rvith respect to trust because,    in K.A,'s
experience, V,S, was a               liar.   Further, said K.S,, V.S. had a reputation among others as a       lia¡.15e

In a written stâtement, K.S,             saicl:



             V was never one to be trusted,  She is a liar and a rnanipulator. She manipulated people
             into getting what she wanTed. She would lie and cheat her rÐay out of arry situation that
             meaut lrer not having to get in trouble or sufl'er the consequences f'or her actions. Ëor
             years I watched as she lied and manipulated her parents into thinking she rvas someone
             'she
                    nvasn't.!óo


             Frequently, said K.4,, she talked on the phone with Mr. lvlontalvo, sometimes late into
the night due to her schedule, She stated that she confided in him about her performance in
track, problems in her fanrily, ancl things going on at school, and the convetsations ìasted hours,
Hel parents were aware of the calls, she said. She stated that lvfr. Montalvo did not                      t¿ll< to her

about any problerns with his lvife, except to mention her concems that summer track took so
much of bis time.16l


             K,A. said that Mr. lvlontalvo sometimes              massaged her injured hamstríng '*'hen no one

else was available. She saw hirn rubbing down other athletes, again                   if no one else was available
to do   it, K.A. saw Mr. Montalvo                 nrbbing down V.S. at a track meet, but not afler ptactice,ló2


             In the summer of 2008, K.A. was training with Mr. Montalvo. She said that V,S. would
still show up at track practices and weight room workouts, and                    slre came to a birthday pafly for

A.G.    at   Mr. Montalvo's house.r63




             t5e
                   Tr. at452-455.
             160
                  Rcspontlent's Exbibit 6.
             rt'r Tr, at 466-4(17, 4i 5-4'1'1, 481 -4112.
             t61   1r. at 472-474.
             ró1
                   Tr. at 478-479.




                                                                                                       MONTALVO V. SBEC
                                                                                                       0044
soAH DocKET NO. 701-n-8468.8C                               PROPOSÀL FOR DECISION                        PÀGE 36



          K.A, testifìed that, in the spring of 2009 (the year follorving graduation), V,S. was very
troubled. had a boyfriend of whom her parents disapproved, and posted on Facebook that she
\vas   pregtant. V.S. did not lrave a child lronr           the pregnancy she claimcd ât that time.l6a



          According to K.A.'s        l ritten   statement, Mr. Montalvo is a ciuing, inspiring, gerrerous, arrd

trustworlhy coacb,165


         Dína Peua líves in Rio Grande City, in tlre neighborhoocl where Mr. Montalvo lives,
Ms. Penp regards Mr, Montalvo as a               f   iend, and he coached her two daughters in tmck, 'One of

her <laughters, E,P., was a teammate an<l ôlassrnate of V.S.l66 lvls. Pena statpd that she harl been

acquainted with V-S. and her parents since V,S. ancl E,P. had participated in summer t¡ack in
elemeutary school,t6T According to Ms, Pena, V.S. was not a very truthful p"tson,tut In                        a

wdtten statemeût, Ms. Pena said fhat Mr. Montalvo is a mentor to her riaughters and has their
wholehearted trust.l6e


         .E   P.    graduated from     Rio Grancle City HS in 200S and has since graduated frotn the
University of Texas at Austiu. She ran track in high school, and Mr. Montalvo has been her
coach since she was in sevenilr grade. She stated that she has known V,S. since they were in
elementary school, and knows her fairly               well. They used to be friends, stated 8,P., bul the¡rhave
had a fàlling out.lTo




          tG 'lr. at460462.
          rt'r Respondent's Exhibit 6.
          roé
                Tr. at 4E6-488.
          16?
                Tr. at 488. V.S. actually began sutruner track i¡ middle school
          lól Tr.   at 489.
          r6e
                Respon<lenl's Exhíbit 12.

          '"n Tr. at 51t-535.




                                                                                                   MONTALVO V. SBEC
                                                                                                   0045
soAH DOCKET NO. 701-ll-3468.8C                                PROPOSAL NOR DECISION                         PAGE 3?



        \\¡hen asked about V,S,'s reputation for truthfulness, E,P. replied that V,S. "lies
oonsistently."lTl E.P. also          statecl that   \¡.S, had askecl her t9 lie for her.l72 In a wriLl.en statenrcnt,
IJ.P. saicl abor¡t V.S, that she "is a manipulative person and com¡rulsive liar,"l73



        Concerning phone calls with Mr, Montalvo, E.P. stated that, as a freshtnan, she talked
with him on the phone about three times per week, As she grew more confident in:her athletics,
she spoke wilh him less, she said, but ar<¡un<l importaut competitions she had lengthy
conversations of n:orc than an houi r,vith him.'74 She said, "He latked to all of us on the phone

late at night."l75


        Il.P. said that       if   V.S. was injured, there was no cloubt in E.P.'s mind that Mr. lVlontalvo
would tell V,S. to go to the trainer. Further, agreed E.P., Mr. Montalvo would not tolerate                         a

refusal to go to the frainer.tT6


        E.P. sometimes saw Mr, Montalvo massage V,S. during practice. Also, said E.P.,
sometinres V.S, rvould be arou¡tcl after practice,lTT


        With respect to stretching, E.P. testified that lvlr, Montalvo stretched her by having her
place her back against a wall, immediately adjacent to a cloorway, and he woulcl move her leg up,
past her bocly, and into the ofen doorrvay, She stated that she was very tlexible. ærd no one else

was strong enough to stretch hcr adequately. She further saicl her mother was sometimes present
                        178
fbr the stretclring.




        r?t Tr, at 53(¡-537.
        L"2
              Tr. st 544.

         '?1 Respondent's Exhibit 13,.
        t1a'i'r,at537.
        r?s   'l'r. at 569.

         'tu '|r. ot 5?3, 594-i95.
         lt? Tr. at 556-587.

        'i^ Tr. at 550-55 t, 579-5S0,




                                                                                                         MONTALVO V. SBEC
                                                                                                        0046
.so^H DOCKET NO. 70r-ll-8468.DC                                  PROPOSAL FOR DDCISION                      PAGE 38



                                    of 2008, Mr, Montalvo talked to E.P. about V.S.'s
                E.P. testifìed that, in"the spring
possibly doing something to hurt herself. E,P. and V.S. had been good friends, and
Mr. Montalvo was trying to detcrmine if, in E.P,'s words, this was'Just to get more                   attentl'on."179

E,P. told lr4r. Montalvo that she thought any suicide threat by V.S. was false.r80


                E,P, stated that she sfiw no change in V.S.'s demeanor towatd Mr. Montalvo in their
senior year,lsl Further, she stated, after graduation V.S. came to a birthday celebration                   Jlor   A.G.

and asked Mr, Montalvo why he harl not thrown a party for her birthday.rE2


                E.p. said that Mr. Montalvo was like a father figure to her, aud he never did anything to
break her trust in him.l83 She described him as an "exceptional educator and human being" who

taught discipline and perseverance and rvas a posifive influence in her life.lsa


                A.G. rwt frack at Rio Grande City HS, from rvhich she graduated in 2007.              She   still lives
in Rio Grande City, and works at a stadium in the                  area.l85



          .     A.G. restified that         she has knólvn V.S. since   A,G, was a freshman in high school and V'S'
was in the eighth grade. She said that V.S. was a                         friend. According to 4.G., V.S. was not
known for being honest.ls6 A,G. further asserled, in a written statement, that V.S' had asked her
to lie tbr her.r87




.r   ''   i,.          .,
                r7e
                       Tr, at 56'l-569.

                '80
                       'Il.    at 570.
                rEr
                       Tr, at 552.
                rH2
                       Tr. at 558,
                rEî
                       Tr. at 538,
                r8a
                        Respondent's Exhjbit l3¡,
                r55     'l'r. aI 604-605.
                t6t'    Ii'.   ar 605-606,610.
                r87
                        Respontlertt's Exl¡¡bit 15,




                                                                                                        MONTALVO V. SBEC
                                                                                                        0047
so^H DocKET                  NO. 70r-il-8468.8C                  PROPOSAL FOR DECISION                 PÀGß 39



           In    June 2008. said Ä.G., her father was sick, so Mr. Montalvo threw a          little dinner party
for her birthday. A,G. state<l that she invitedthree girls, one of rvhom was V,S, A.C, testifìed
that u4ren V.S. walked in, she was upset ancl sa.id, "Oh, Coach, you'never do this for me."l88


           During that same summer, said 4,G., V.S, was around, working out in the presence of
Mr. lvlontalvo,              ancl she clisplayecl no fear of him,tse



           IJaldemar Gørza is an attomey in Rio Grande City. He is a friend of Mr. Montalvo, and
Mr. Montalvo                   coached and trained       Mr.    Garza's son, who went on     to run track     at

Cornell University. lr4¡, Garza also consulted with Mr, Montalvo about his criminal ca$e.leo


           Ivb, Garza testified that he has seen V,S. intel'act with Mr. Ivlontalvo on many occasions,
including during the summe¡ of 2008, and that she behaved notmally'rer


           ¡¿¡r. Garza said that he            is aware Mr, Montalvo rubbed down athletes, inclucling female
athletes. Mr. Garza saw nothing inappropriate about the plactice.re2 As to the phone calls
between Mr. Morfalvo and V.S., rVr. Garza noted that his wife is a teachet, and he said that
teachers often e.nd up listening to kids' problems because their needs âre not met at home,l93 He

also suggested. that his son did not always reveal injuries to him because he wanted to compete,
a¡d goocl arhletes                   sometimes     do   tJrat.,lea   Frrther, when asked about sfudents    using

lvfu.   Montnlvo's Jacuzzi, Mr. Garza noted that Mr. lvlontalvo had asked him to make the pool at
Mr. Garza's home available to injurecl stuclent athletes from tirne to time.les He               stated that he

believes Nlr. Montalvo is a declicated anct caring coach'l'6

ffi:
           r6E
               Tr. at 609-610,
           tte Tr. at 614.

           ''o Tr, ot 651-653.
           't'   Tr. at 654-656,
           te2
               Tr, at 656,
           t"3 Tr. al 661,
           re4   'li.   at 661.
           tet Tr.      aL   662.

           ''o 11.,ut657. Awrinenst¿ìtemùntof lvlr.Garza'sisatResponclent'sExhil¡itl4.




                                                                                                    MONTALVO V. SBEC
                                                                                                    0048
soAH DocKET NO, 701-ll-8468.8C                             PROPOSAL F'OR DECISION                            PAGE {O



         K,T. is a stuclent at the Universify of Texas at Kingsville, where she runs track. K,T'                    has

known Mr. Montalvo ibr six years, starting with b.is being her coach in summer track, then ber
high .school coach. She graduated f¡om Rio Graqde City HS in 2010 and was                       â   teammate of V.S.

for t*,o years, K.T. said that she and V,S. we¡e close friencls in K,T.'s sophotnore yeat'te?


        K,T. testified that V,S. was "clingy" with lr4r. N4ontalvo, and her belravior toward him did
trot change duri¡g the time K.T. was arou¡d them, iucluding the spring and sttmrner of 2008.re8
K.T. said that, at the time of the Mission track meet in the spring of 2009, V.S, came and wanted
to ride with the team o¡r the bus, but could not because she was not part of the school, At the
meet, saicl K.T., V.S. v,as jumping on Mr. Montalvo's back.l99


          K.T. rec¿¡lled the state meet of 2008in Austin, forwhjch she was the only Rio Grancle
City female. track athlete to qualify. She said that V,S.              ancl   E,L, went along, too, because lhey

were the athletes who had worked hardest at practice that year. According to K'T',
lr4r. Montalvo calle<l each girl in, one by one, to his room tbr a talk. He told K.T' what she had
lo do and not to be netîous. He gave her             a necklace that his sister had made, and a big hug,'like

a father rvould give. She said there was nothing inappropriate about the interaction. She
esrimated she was with hjriLfor about 30 minutes, and it <lid not seem to her that the other gills

were with him lbr any longer.2oo


          When asked about her opinion concerning whether V.S. is a truthful person, K.T. replied,
',I horrestly thi¡k that she rvould do anything to get what she wants." Referring to lying, K.'I.
said V.S. "kno\ils that she can get away rvith it with her parents and anybody else."20l




          re?
              Tr. at 668-669. Coach Lu testit-red that K.T. and \¡.S. dicl nor ahvays like each other. li. at 5l l-532.
Àccording {o K.T., she had a falling out with V,S. afle¡ a traffic accidenl Ín rvhich V,S. was a driver rurd K'T. was
hcr passci-e"r. f.i'. res¡tÌe¿ rhat V-,S. inappropriately tried to place all the blame on the driver of anotlrer car, ætd
¡¡cn V.S.'s* mothcr urgecl them lo sue for no reason. K.' - said thís incident pusbed her away fì'om V.S' and V'S.'s
fanrily. 'fr.   aI 6'76-677.
          ie6   'lr.   at ó70.

          'ee Tr. at 6'10-6't    l.
          2(Ã Tr. al
                     67 -1-676,680-652.
          ?ot
                Tr.at67i-




                                                                                                          MONTALVO V. SBEC
                                                                                                          0049
soAH DOCKET NO. 701-l l-8468.8C                         PIìOPOSAL FOR DBCISION                     PAGE 4I



        K.T. was at the Donna meet, near V.S., when V.S, injured her hamstring. K.T' stated that
the coaches told V,S, to go to the trainer, and she went'202


        I(.S. is a student in high school and the daughter of Ricar<io Saenz, auo(he¡ witncss in this
case. K.S, has been coached by Mr. Montalvo in             srtmnre¡: track and   high school. She said that

she knows V,S. from sulnmer track              in   years past, but they \ryere never high school track

teanmates. K.S. state.d that, when she was in niddle school, she worked out with tlre high
school athletes, and she .saw V.S. around Mr. lvfontalvo in 2008, including that summer. K.S.
said that V.S. r'vas outspoken and friendly with lr4r- N4ontalvo'2o3



        As to V,S.'s reputation for truthfulness, K.S, stated that she always heard people saying
that V,S. was not avery truthful person'2oa


        In a written statement, K.S. said, "I have attended many tmck meets all around the United
States under      [vlr. lvlontalvo's]   care and not once has he disrespected me in any way.,,I believe

Coach Montalvo is a good and decent.man who is genuinely respectful and profèssional rvith his
athletes."2o5



        A.B, is a l/-year-old student who was coaohed by Mr. Montalvo for about otre year in
high school, A.B saicl that she is acquainted with V.S., having met her a couple of times during
                                                                                          joined
trâcl( season. They were not, however, teammates; V.S, hacl graduotecl by the time A.B.
the track teanl,zoó


        A,B, testified that V.S, has a reputation in the commnnity for dishonesty.20T A.B. also
testìfied that, during plactices in the surrnrer ol 2008, V.S, "alwa)'s tried to get [lvlr' Monlalvo's.l


        202
               Tr. at 678-6'79.
        201
               Tr. ¡t7ll-'113.
        2o't
            Tr, at714.
        tor Respondenl's Exhibit   I 8,

        'nu Tr. at719-720,
        201 'I'r.
                  aÍ 721   .




                                                                                                MONTALVO V. SBEC
                                                                                                0050
soAH DOCKET NO. 701-ll-8468.8C                                PROPOSAL FOR DECISION                                   PAGE 42



attention and distract him rvhile he rvas trying to coach the track team."208 Further, said 4,8,, at
the 2009 Mission track meet, V.S. wanted to ride on tjre bus, but Mr. Montalvo lold her                                      she

could r¡ot. A.B. stated that, at that meet, V.S. "would try to get [Mr, Montalvo's] attention while

he was coaching me <Iuring my jumping events," and V.S. was trying to hug Mr. lvfontalvo,2oe



         A.B,    ,said    that Mr. Montalvo was never inappropriate with team members or V.S., did not
slap girls on the backside, and was a good coach.2to In a written statement, she saitl, "While
being coached by Mr. Erasmo Monlalvo in 2008 through 2009 ho has shown nothing but total
respect torvards me.. . and my Leam mates,"2ll



         6,           Other Evidencc

         In eviclence are copies of several greeting cards Mr. Montalvo sent to V.S. On the cards,
Mr. Montalvo wrote notes repeatedly exhorting V,S. to work hard, stay çlose to her                                     parents,

follow her tlreams, ancl remain focused.2lz


         Atso        in   evidence   is a DVD recording, as well as a transcript, of the local television
interview with Mr. Montalvo and V.S. about her scholarship.2i3 In the interview, V.S. appears
happy and excited, and seelns cor¡f'oflable in Mr. Montalvo's presence.


         Police recorcls associatecl with the investigation of sexual. assault ale in evidence,2'4 In
addition, Stal'f iutroduced a staternerrt by the Stâte's Advisor.v Iloard of Athletic'l'rainers about




         2oa
               Tr.   aL 721   .

         too
               Tt. ut 721-723.
         )to Tr. at 723.
         2lr Responden¡'s Exhibít       8.
         tt'   Sta¡¡ s    Erhibit -5. V.S. testifiecl that Mr. Montalvo gave   bilthcla,v ancl Valcntine's cârds 10 all the gít'ls
on the team, Tr'. at 44-45.
         2rx
               Respondent's llxhibits 23 and24.
         2ra
               Respondeni's Dxhibits 21, 25-27,




                                                                                                                  MONTALVO V. SBEC
                                                                                                                  0051
soAH DOCKET NO. 701-ll'8468,nC                      PROPOSAL FOR DECISION                              P¡\GE    43




the role of licensecl athletic trainerszls and University Interscholastic League acknolvledgement
fornrs signed by Mr. Montalvo,2l6


E.     ALJ's Analysis

       1.         Witness Credibility


       The evidence of tbe central allegalions in       úis   case    - of sextnl impropriety     and assault   -
consists almosf exclusively       of the   statements   of the two       persons involved, Studed          1   and

Mr. Montalvo, Therefore, their general credibility must be            assessed.



       Âs to V.S.'s credibility, lvlr. Montalvo makes a number of arguments. First, he argues
that she is not credible because she was rvidely reported to have behaved normally around
Mr. Montalvo, even seeking out his company and attention, during ancl after the time of the
alleged sexual abuse, arrd she appeared excited and happy in a video filmed with him shortly
after the alleged sexual abuse occurred.


       Second, Mr, Montalvo points to V,S.'s inconsistent s(atements concerning tJre number                     of
times she rvas sexually penetrated by Mr. Montalvo.            I¡   her interview with the.Child Advocacy

Center. she stated that the she was rapecl only once, in the fielcl house, and that the incident at

Mr. lr4ontalyo's house involved oral sexual contact                only. In her testimony at the hearing,
ho$;ever, she was clea¡ that she had been penetrated on both r¡ccasions.                  In additiott, V.S. was
inconsistent   in her clescriptions of how Mr. Montalvo allegedly             ol't'ered   to pay her 1i2,000 in
exchange for sex. [n her Child Advocacy Center interuiew, she stnted that Mr. Montalvo told her

he had hear<l she was "teally good" and asked her             if   she wor.rld ever have sex with      him. At
Mr. N4ontalvo's criminal trial, V.S, tcstifiecl that Mr. Montalvo just asked her to "suck on it,"
And at the hearing in this case, she stated that he ctid not explicitly ¿uk lor sexual conduct, but
rather she ilú'crred that he was seeking sex in exchange for money.




       t't   stafl's Exhíbit 6,
       2r6
             Slaff's Exhihìt 8-




                                                                                                    MONTALVO V. SBEC
                                                                                                    0052
so^H DocKET NO. ?01 -l I -8468.8C                               PROPOSAL FOR DXCISION                                  PAGE 14



          F'inally, lvlr. Montalvo argues that V,S,'s credibility is impugned by testimony in                                 the

record about her lack of tn¡thfrllness.


          The ALJ does not                  lin{ Mr.   lvfontalvo's    first and second argur.nents about                 V.S.'s

credibility convincing, Ms. Garza-Louis testifìed persuasively that sexual abuse victims often
exhibit a pattern of normal behavior around their abusers for appearances' sake and to try                                      to

coffect the harmful situation. The ALJ gives no weight to the argument that V.S.'s normal and
even exuberant demeanor in                  Mr. Montalvo's presence, well before her outcry and while V.S.'s
world stifl revolved arouncl the high school track team, in any way makes her accqsations                                    less

likely to be true.2l7 Nor is the ALJ persuaded that the noted inconsistencies in V,S.'s story
diminish her general believability, Again, Ms, Garza-Louis teslified convincingly that the stories
of actual sexual abuse victirns often change over tinìe, and these                                   changes may reflect
clisassociation and an {tempt by the victjm to diminish the magnitude of the experience. V,S.'s
inconsistency about tl:e number of times she was rapeð does not, therefore, indicate that she is
not telling the     truth, And tlie ALJ           does not find her conflicting vetsions of. the alleged sex-fbr-

money discussion significant enough to cast general doubt on her credibility,


          Éloweve.r, the     ALJ is troublecl by the considerable testirnony in the recorcl about V.S,'s
ovcmll propensity for dishonesty. Witness after wilness                      -   including several teammates who had
known V,S. for yeal's,         ¿rs   well as an assistant coach       -   offered testimony that V.S. is dishonest or
has a reputation      for being trntrustworthy. Many of thesewitnesses spoke in unequivocal terms
about V.S,'s tendency to             lie,   Coach Lu stated that V.S, ìs untrusfworlhy and her slories change.
K.A. called her a "liâr" and "manipulator" who "was never one to be trusted," E.P. said that
V,S. "lies consistently," has askecl E.P, to lie for hel, zurd "is a mattipulative person atd
compulsive lia:'." A,G, stated that V.S. was not known for being honest, and had asked A,G. to
lie for her. K.1',, when asked about V,S.'s trtrthñllness, .stated,                    "l   honestly think that she woulcl.

do anything to get what she wants," K.T. stated baldly that \¡,S. knows she can get away rvjth

          2r?
              Olr the otlrel han<J, the ALJ is so¡lewhat concemed hy the fact tlìat V.S., in April 2009. a full year aller
lhe evenLs at isslLe ilr lhis case à¡rd ar<¡rrlrcl the tinle ofher outcry, returned l'roln college, accotttpirtlied the teallì to a
track rrecL, and helpetl Mr. Mo¡¡talvo coach. hugging hiln and seeking ltis t¡trention. Ms, Garza-Louis's testinrony
did not adequately address rvhy a victim would behave rorvard her abuser in tlús fasbion so lorrg afler ihe abuse,
after or al¡out the tirne when she was rnaking an outcry, and rylten she could easily avoid such close contact lvith
hinr.




                                                                                                                   MONTALVO V. SBEC
                                                                                                                   0053
so1\H DoCKET No. 701-l l-8468.EC                            PROPOSAL FOR DECISION                           PAGE'15



lying. Ms, Dina Pena said v.s. is not a very truthful person. K,s.                 and A.B, stated that    V.s,   had

a   reputation for lack of l.:'uthftrlness.


          Staff invites the ALJ and the Board to dismiss this notable body of testimony as coming
fìom persons who ^'would naturally be biased in favor of their beloved coach."2l8 This clairn has
no basis in the recorcl,2le On the contrary, the testimony of a nu¡nber of the young athletes
indicates that any "bias" on their part arose out              of their direct   experiences rvith a coach who

treated them with re.spest and with a young l¡i/onan who lied and asked some of them to lie for
her. The chorus of voices casting doubt on V.S,'s credibility wâs colroborated by V.S.'s own
aclmissions tbat she has lied about important matters, falsely telling the police that she was
kiclnapped and falsely telling family and friencls that she rvas pregnant, on both occasions to
manipulate, and to gain attention and syrnpathy, from someone in her personal life,


          'Ihere is no similar evidence generally calling into question Mr. Montalvo's veracity,

r\ny inconsistenoies in hù testirnonlto do not rise to the level of casting overall doubt on his
credibility.


          2.       Sexual Impropriefy and Åssault


          Staff alleges; and \¡.S. testified, that Mr. Montalvo touched her inappropriately on
rnultiple bccasions, sexually penetrating her on at least one occasion,


          V,S. tells a plausible story. Her assertions          -   that Mr. Montalvo massaged her frequently

and in private, that his massages gradually became sexual, that he used his position of authority
and trust to gain power over her alrd her family, and that he actu,ally raped her                 -   certainly could

be   true. lvfs, Garza-Louis charactedzed V.S.'s accoLmt              as believable, noting that these events, as




          2t* Petitioner's Response to ResponrJent's Closing Argument at    I'
          tln ltr the sante pal'agraph.   Staff groundlossly speculatcs that the jury that noquitted Mr. Mt¡nlalvo   was

biased. Itl.
         t2o
               Fo¡ exaurple. Mr. lvlolrtalvo ntade varvirrg slatenents about rvhether he told V.S. to go to the trainer
(despite what   Mr. Montalvo chalactel iiæd as Mr. Sancllez's refusal to allow he.r to go).




                                                                                                         MONTALVO V. SBEC
                                                                                                         0054
    soAH DOCKET NO. 701-lI-8468.Dc                               PROPOSAL FOR DECISION                                PAGtr 46



    describecl    by V.S,, follow         recognized patterns        of   sexual abuse, The ALJ âgrees that,                  if
    considerecl in a vaouum, V.S.'s testimony rvould be extretnely convinciug.



             However, whether something couldbe tlue is a different matter fro¡n v'hether                            it is true,
    The inquiry into whether V.S.'s story is accurate canuot occur in â vâcüum¡ but must take illto
    account the entirety        of the evidence in this         case. The evidence inclucles two very important

    far:tors. First, IvIr. Montalvo, who testified at length in this hearing, denies                     Xhese accusations,

'   He, too, tells a plausible story             -   that of a hardworking coach trying to help a troubled,
    emotionally needy athlete deal with depression, overcome her anxieties, and be successful                                 ín

    high school ancl beyond. Second, there is the considerable evidence (discussed above) calling
    into question V,S,'s creclibility as a wifness. Mr. Montalvo's denials and V,S.'s problematic
    relationship rvith truth do not necessarily mean V.S.'s accusations                           in this    case are false,

    Respected coaches can abuse their power a¡rd cover up their rnisdeeds, and dislionest people can
    be victims     of heinous acts.         Flowever, Søff has the burden of proving its allegations by                        a

    preponderance of the evidence. The general plausibility of Mr. Montalvo's version of events and

    the evidence casting doubt on V,S,'s credibility hightight the need for evidence corroborating
    V.S.'s assertions.


             Such corroborative evidence is scant. Staff asserts that the mmy phone calls betrveen
    Mr. Mo¡rtalvo and V.S, constitute corroborative eviclense of the sexual abuse. I'here is, however,
    absolutcly no evidence that the calls related to a romantic or sexual relationship or solicitation
    between them.22l


             Staff also places much reliance on the testinrony of Ms, Garza-Louis that V,S.'s story is
    believable. As clissussed above, the ALJ has found Ms. Garza-Louis's testimony effective in
    rebutting r\4r. Montalvo's argurnents that V,S. should not be believed because of her ciemeanor
    toward Mr. Montalvo and cel'tain inconsistencies in her stor¡'. Howevct', Ms. Garza-Louis is in                            a

    pool position to     otT'er a nreaningtirl       view concerning the ultimate facts in this case: whether the
    allcgcd acts actually occur¡ed or not, She is a couñseìor and has knorvledge about behavioral

             "' Tlle only evidence of any ínappro¡rriate content was V.S.'s testimony fhnt lv4r. Ilontalvo sornetirnes
    raike{ atrout proìrlents rvitJt his wife (includitrg sext¡al plol:lenrs), a claint Mr. \'lontalvo denies, V.S. tesLified that
    rnuch of the talk on the phone wa-* about tl'ack.




                                                                                                                  MONTALVO V. SBEC
                                                                                                                  0055
so^H DocKET      NO. 70r-lr-8468.8C              PROPOSAL FOR DECISTON                       PAGE 47



patterns in sexual abuse situations; she \\as not shown to be an expert in general credibilit-v or

sorting out disputed fncts. She has no direct knowledge of the events at issue. She has met none
of the persons involved, Sbe watched the DVD of V.S.'s interview at the Child Aclvocacy
Center, but Ms. Garza-Louis did not listen to any of the testimony in this case. She did not hear

V.S. or Mr. Montalvo testify. There is nothing in the recorcl to indicate that she is farnilia¡ with
Mr. Montalvois detailed version of events, She clicl not hear the testimony of any of the many
withesses who raised serious concerns about V,S''s dishonesty'


       The most direct corroboratiye eviclence of V,S.'s accusations of sexual abuse came from
V.S.'s mother. Ms. Sa¡chez testified that V,S. was upset ancl crying upon retumirrg from
Mr. Montalvó's Jaouzzi oue day. She fulther testified that V.S. \Ã,as vety late coming home one
night, and, when Ms. Sanchez called Mr. Montalvo, she could hear V,S, crying ín                    the

background. Ms. Sanchez also testified that V.S. did not want Mr, Montalvo to accompany the
fagrily to Corpus Christi to talk to college personnel about the terms of the scholarship. This
testimony tends to sorroborate V.S.'s accusations. On the occasions when V.S' was crying,
Ms, Sanchez was tolcl that it was because V.S. rvas upset about her        injwy. This is certainly   a

possible explanation for her tears on the late-night occasion.     It   seems less plausible affer the :

Jacuzz.í   visit, as Mr, Montalvo testjtìed that V,S,'s leg felt better afler using the Jacuzzl
Howevor, the ALJ has concerns about the accuracy of Ms, Sancbez's recollections. Ms. Sanchez
testifred that she had no menÌory of a dramatic event described by bottr V.S, arrd her father, in
which V.S. told ber mother in the summer of 2008 that Mr. Montalvo had touched her,                and

Ms. Sanchez called her husband home, rvheteupon he got out      a gun to use against Mr. Montalvo.

Ms, Sanchez's corïoborative teslimony, theref'ore, r.vhile troubling, does not add enortgh to
Staff s evidence to meet its burden of proof on the allegations of sexual abttse.


       No wítness corroborated V.S.'s statement that she received multiple daily massages from
Mr. Montalvo. No one claimed to, rrpon leaving school, notice V.S. and Mr. Montalvo lìnget'ing
alone togetfier after practices. No teammate agreed rvith V.S. tbat Mr. Molrtalvo kept her alone

with him in the hotel loom at the ,statc meet for more than thc shon time everyone else was rvith
him. There is no physical evidence of      sexual oontact   in lhis case, äs cxists in   some rape or

sexual aþuse cases. Mr. Montalvo aclnlitted to giving V.S, occasional ricles ho¡ne altcr track




                                                                                          MONTALVO V. SBEC
                                                                                          0056
soÀH DocKET NO. ?01-l1,8468.8C                                 PROPOSAL FOR DECISION                       PÄGE 48



meets, but there were only seven track meets after the alleged abuse started, and V.S. saicl that
the inappropriate touching occunecl 50 or more tirnes.222 Conflictirrg evidence about whether
lr4r. Montalvo slapped girls on the backside cloes not makc it more likely that he sexually abusecl

V,S. Nor does eviclence               that some people did not like the look of his stretqhing the athletes,
That Mr. Montalvo rubbed down athletes also proves nothing, aspecially given that, at the time,
the district had no policy against                 it,   'Ihe ALJ cannot see any connection between V,S.'s
allegations of scxual misråahrent ancl Mr.lvfonlalvo's giving hjs athtetes greoting cards with
inspilational messages and costume jewelry rnade by his sister. Mr, Montah'o's poor judgtnent
in allowing athletes to use the Jacuzzi in his master bath does not establish that he assaulted V,S.
when she lvas in his horne.



               For the above reasons, lhis lecord does not support a finding that Mr. lvlontalvo touchäd
Sfudent          I   inappropriately, engaged        in romantic or sexual conduct with her, or          physiÖally

misl¡eated or         abuse.cl   her in violation of Code of Ethics Standards 3,2,3.5, and 3,6,


               3.       Telling V.S, Not to Go to the Traincr


               It is undisputed     that V.S. did not see the lrainer for her hamstring         injury, It is also
undisputed that district protocol rcquired injured students be referred to the trainer, Staf[.alleges
tbat i\4r.lrlontalvo told V.S. that           if   she infornred the athletic. trainer sbe was injurecl. the lrainer

would not let her run in the district and regional track tneets. This is the only allegation in the
pleading concerning the trainer. While, sulely, a coach's making such a factual àssertion could
not by itself be a sanctionable everrt,                  StafÏ--s allegation implies that lvlr. lr4ontalvo actually

prohibited V,S. fiom sceing thc trainer or urged her not to go. The ALJ interprets the plcading to
mean that N4r. Montalvo actively discoulaged V.S. from going t<l the trainer,


               Staff s main assertion seems to be lhat Mr. Montalvo was dominating V.S. a:rd grooming
her for sexual abuse by contlolling her rehabilitation, placing himself in the caretaker role, atcl
providing himself rvifh a rcady cxcusc to cngagc in physical contact with V,S. As                         <liscnssed


               ttt
            lt js tìot even clear to rhe ALJ that V.S. as.rerted arrylhing impropcrhappcned on thc ridcs honle. Whcn
aske,:l    Chihl Advocacy Center intelvicw whele thc- abuse occtuted, she r:eplied that il occun'ed at school and a1
          in   heL
Mr. Montaivo's hol¡le,




                                                                                                       MONTALVO V. SBEC
                                                                                                       0057
so,{H DocKET NO. 701-il-8468,8C                            PROPOSAL FOR DECISION                             PAGE 49



above, there is insufficient evidence          in the record to support the allegatious of sexual abuse.
However, Stafï also seems to argue that plohibiting or discoulaging V,S, from going to the
trainer, cven without any scxual overtone.\, harmed her by clenying her the proper treatnrent for
her   injury. Aside from grooming for sexual           abuse, there was another l'eason rvhy a coach would

not want a trainer to require V.S, to sit out flom the district meet. V.S, wäs a star athlete,. ald the

team neecled V.S, to compete              in 2008 in order to win the district charàpionship.223 If
Mr. Montalvo prevented V.S, from seeing the trainer for her injury, he may have violated
Standard 3.2,by knowingly treating a student              in a rnanner that advetsely affccted the student's
learning, physical health, mental health, or safety. Or, Mr. lvlontalvo miglrt have violated
Standard 3,5, by intentionally, knowingly, or recklessly engagirrg                   in neglect of a student or
minor,


         V.S. testified that Mr. Monølvo told thern the trainer rnight keep V.S. fiom participating
in the di.strict meet, and her failure to run could jeôpardize hcr scholarship. FIer palents bolh
echoe.d that   testimony, V.S, and her father testified that V.S.'s mother took her to Mexico for
shots. Mr. Sanchez said the shots were Mr. Montalvo's idea. V,S. said she never saw a doc-tor
for her injury, ln contrast, lt4r. I\4ontalvo repeatedly testified that he told V.S,'s farnily he would
prefer that she go to the trainer, but that Mr. Sanchez adamantly said he would "take care of it,"
and woulcl take V,S. to a       doctor. According to Mr.Ivlontalvo, V.S. and het parents refused to
involve the trainer. IIe varyingly said that he tolcl V.S. to go to the trainer, that he did not do                 so

bnt should have, and that he coulcl nol recall what he told her.224 Mr.lvfontalvo sajd be                         rvas

under the irnpression that V,S, was seeing a doctor in lvlexico.


         This js a diffic,ult faotual issue, as there is potentially persuasive evidence on both sides.
V.S. and her palents ail testified ihat tr¿r. lvlontalvo did not want V.S. to go to the trainer, telling
them that her scholarship might be laken arvay. Their vcrsions of events \ryere consistent.
However, as tlisctnsetl above, there are concerns about the accuracy and credibility of the
testimony of V.S. ancl her mother. Further, the AL.J is unpersuacled by V,S,'s ancl her parents'

         "t Tr', at 4og.
         ""' Mr'. Montalvo's lestimony   lhat hc dicl not send V.S. to thc trainer but should have scnt done so could
rnean, as his argurnenI sußgcsts, that he.should hat,e insisled sbe see the trainer, despite her family's refitsal. See
Respondent's Post-Heuring Rr:ply Brielat 7.




                                                                                                        MONTALVO V. SBEC
                                                                                                        0058
 soAH DOCKET NO. 70r-r 1-8468.8C                          PROPOSAL FOR DI,CISION                           PAGE 50



 assertions, and Staft's argr¡ment, that the family trustecl lVlr. Montalvo              to thc degree that they
followed whatever aclvice he gave thern about V.S.'s track career, It is undisputed that V,S.,                  as a

freshman, had a cardiac condition perceived as dangerous ancl possibly lif'e+lueatenilrg, ancl that
both her doctor and lvfr. Montalvo advised V,S,'s parcnts not io let her run. Nonetheless, they
allowed her to      run, Tlris uncontrovertecl fact strongly supports Mr. Montalvo's contention that
V.S,'s parents      rÐ-ere   "extreme" about her lrack career and lends credibility to Mr. Montalvo's
             Mr. Sanchez insisted he would "take care of' his daughter's injury himself.
assertion that
Fufher, Coach Lu testifred that she (and Mr. lvfontalvo) tokl V.S. to go to the trainer. In
adclition, given that V,S. was going            to Mexico for shots, it is plausible that Mr. Montalvo
believed sbe was undçr medical care for her injury, Coach Lu testified that V,S. told her she saw
a cloctor in Mexico for her        injury. Mr. Meguire testif'led that parents do not have to agree to let
their clúlcl go to the trainer, ancl can instead decidc to take a chilcl to the doctrii to Mexico for
shots, or to do nothing at all in connection with an injury,


           \\¡hen tüe evidence o¡r a factrral issue is this confusing and close, there is essentially a tie,
and the party witlt the burden of proof loses. Accordingly, the ALJ determines that StafT has
failed to prove Mr. Montalvo told V.S. not to go to the trainer for her ha:nstring injury.
Tîerefore, no violation of Cocle of Ethjcs Standard 3,2 or 3,5 was sìrowr.225


           4,      Tclephone Calls


           A   coaclr's talking to a studcnt by telephone 480 times over frve months is certainly a
matter to trigger concem. IJorvever, for the phone calls to violate the cited llrovisions of the
Code of Ethics, they must have constitutecl knowing trealment of a student in a mamer that
acìversely afïected thc studcnt's learning, physical health, mental health, or safety; physical
mistreatment, neglect, or abuse of the student; or soliciting or engaging in sexual concluct or a
romarrtio relatiorrship witb a stndent. Nonc of these. r.vas shown.




           225 To prove
                        a violation ol Srantlald 3.2, Stâfl vt,oulcl lrnve to show that V,S. was hamred, To ¡rrove a
violationofStandard3.5,StaffwouldlavetoshorvthatMr.Montalvo'sactionsconstitutedrreglect. TheALJdoes
nol reach these questions because jt lvas not shown that Mr. lvlontalvo prevented V.S. fi-om going to the rrainer, as
alleged.




                                                                                                      MONTALVO V. SBEC
                                                                                                      0059
soAH DOCKET NO. 70r-rr-8468.EC                                    PROPOS.AL FOR DECISION                          PA.GE   51




           Mr, Ramirez, Mr.          Saenz, and         Mr, Gonzalez all testified that the content of           numerous
phone calls r.vith      a   student wouJd be an irnportant factor irr determining                      if   there had been
impropriety, It is undisputed that rnost of the telephone conversations betlveen Mr. lvlontalvo
and V.S. were about             track. Mr, Montalvo              stated that V.S, required constant atl.ention and
reinforcement and had to "hear it and hear                  it   and hear   it"   so that she could believe in herseltì226

V.S.'s statement that Mr. Montalvo often repeated himself when talking to her conesponcls witlr
Mr. Montalvo's description of these interactions, Despite V.S,'s denial tlut she ever mentioned
suicide to Mr, Montalvo. Mr, Montalvo's tcstimony that he spent so much time talking to V.S. in
parl because she had spoken of suicide is quite believable, Ms, Lu, N,fr. Altahif, and E.P, all
testified that Mr. lvlontalvo reported to them at the time that he was concemecl aboul V,S.
because she had mentioned              suicidc. Further, V.S. was dealing with an injury that impailed her
performance in her senior year, and the spike in the number of calls coiucided with the time of
her   injury. That V.S.'s enotional            issues were related to her injur,v and track performance made

them a legitimate subject of conversation betrveen V.S, and her coach. And, there is testimony
frott   other athletes that Mr. Montalvo's coachiqg involved talking to them by phone, too, and
sometimes late at night.


           There is no evidenoe that the phone calls with V,S, involved statements of love, affection,

or attraction. The only evidence of improper content of the conversalions is V,S.'s testimony
that Mr, Montalvo sometimes spoke of having problems with his wif'e, "saying that they did not
have sex, Mr, Montalvo denies sayirtg anything to that effect. While such rematks, if made to a
student,            have beetr extremely inappropriate, they would not have adversely aft'ected V.S.'s
           "vould
         '*   The rrpetitious tenor of the greetiug cards in el,idence is consistent with Mr. r\lontalvo's testimony
about the phone calls. For example, one note on a card Êom 2006 reads:

                       I
                   V,, aru extr-ernely prourl ol your accomplish¡nents this past weekend...You make
         coaching fun & easy!...Stay rvith the same att¡tudÈ & rvork ethic not only in sports but il¡ life in
         genetal, an<l you will always be .sucscssful. You are tntly a special ¡rer.son & athle¡e. You arc one
         <lf thc best athlctes I have eve¡ coacbecl in the past I I years of coaching tlack (& I lrave coached
         sonreverygoodrunners&jumpers). Stayclosetoyourpar€ntsbecausetheyareyourbiggestfäns
         & they rvill always be their [sicl for you during your ups & downs in your life. Hats of [sic] to
         yourparentstheydidanamazingjobraisínsvoul Ijusthopethatmydaughtergrõwsuptobelike
         you. Don't let anybody ever bring you down & may all your dreams come true.

           St¡¡ffs Exhibit 5 (emphasis in orighal). As noted above, V,S- lestified that Ml', Morrtalvo gave
cards to all the girls on Íhe   teâ,n,'I'r. at 44-15.




                                                                                                               MONTALVO V. SBEC
                                                                                                              0060
soAH DocKET NO. 70r-r f -8468,8C                       PROPOSÄL FOR DECISION                   PAGE 52


physical or mental health, constituted mistreatnrent or neglect, or by themselves amounted to
solicitation or engagenrent in a sexual or romantic relationship. Nor would such           remeu'ks, by

thetnselves, have indicated that Mr. Mont¡lvo is rmworthy            to instruct or supervise youth. It
would have been wise for M¡. I\,fontalvo to have referred V.S, to a counselor instead of trying to
addrcss her needs himself,           but that is a different rnatter, and one not pled in this     case.

Mr. Montalvo's telephone calls u,ith V.S, did not violate the cited Code of Ethics provisions       and

should not subject him to sanction.



        5.       Student Use of Mr.lVlontalvo's Jacuzzi

        It is undisputed tbat Mr. Montalvo allowed         students, including V.S,, to use his Jacuzzi,
\\¡hile there is insuffiçient evidence to suppoÍ a determination that Mr. Montalvo             sexuall¡r
assaulted V.S.      while she was in his home to use the Jacuzzi, lr4¡- Montalvo unquestionably
exetcised bad judgment        in    opening his master bath to silrdents, ancl especially to one female
student alone   -   even   if Mr.   Montalvo's wife was at home at the time, Ftrowever, such a poor
decision did not violate the cited Code of Ethics provisions by aclversely affecting students,
rnistreating or neglecting thern, or constituting solicitation or engagenent in a sexual or romantic
relationship, Nor did this qnestionable decision, by itself mean that Mr. Mo¡rtalvo is unrvorthy
to instruct or supervise youth.


       6.       Summary and Recommendation

       Staff has not ptoven its allegations by a preponderance of the evidence. Theref'ore, the
ALJ recomn:encts no sanction in this        case.



                                         III. FINDINGS OF'F'ACT

       Erasmo lvlontalvo, J¡., holds a Texas Educator Certificate issued by the State Board for
       Educator Certification (SBEC). The cemificate \l'as in frrll f'orce and et'l'ect at all tirnes
       nraterial and relevant to this action.

2      On August 4,2011, the staff (StafÐ of the Texas Eclucalion Agency (TEA) Eclucator
       Ce¡Lification and Standards Division, on behalf of SBEC, sent a notice ol'hearing and




                                                                                           MONTALVO V. SBEC
                                                                                           0061
 soAH DOCKEI' NO. 701-l     r-8468.È,C              PROPOSAL FOR DN,CÍSION                       PAGE 53


         original petition to Mr. Montalvo proposing revocation of the certifìcate refer¡ed to in
         Finding of FactNo. L

 J.,.    'lbe notice of hearing contailted a statement of the tinre, place, and natule of the lrearing;
         a statement of the legal authority and jurisdiction under which the hearing vv'as to be held;
         a reference to the particular sections of the statutes and rules involved; and a short, plain
         statement of the matters asserted.

4.,     Tìre hearirg was held .lanuary L)-12, 2012, before ALJ Sha¡non Kilgore at the State
        Office of Adrninistrative Hearings (SOAI'I) in the William P. Clements Building,
        300West l5th Street, Fourth Floor, Austin, Texas, Staffwas represented by attorneys
        Richard J. Ybalra and lvferle Hoflìran             I)over. Mr. Montalvo     appeared and was
        represented by attorneys Maft Robinett and Corey Tanner, The record closed on
        Marclr 9,2012, with the parties' submission of reply briefs.

5,      In 2008, Mr. Montalvo wa.s a track and fielcl ooach at the Rio Grande City High School
        (HS), part of the No Grande City Consolidatecl Inclependent School District (CISD), He
        was also the physical education coach at a CISD elementary school.

6"      That same year, student I (also referred to as "v.s,"), a t'emale senior under the age of
        1B, was ou the lrigh scbool track teanl coached by Mr. Montalvo.

7.      Student   I attended a track   meet in Donna on March         l, 2008.

8,      While at the Donna meet, V.S. met with a college recruiter and was offered a track ând
        f,ield schola¡ship to attend college in Coqlus Cbristi the l'ollowing year,

9^,     V,S. injured her hamstring at the Donna track meet and did not compete,

l0      V.S, was a star athlete in her senior year, aud the hamstring irUury early in the season rvas
        an emotional blow to her,

I 1,'   District protocol required that injured students be sent to the trainer.

12.     Assistant Coach l-inda l"u rolcl V.S. to go to the trajner.

13.     Parents of injured atbletes do not have to agree to let their children go to the trainer.

14.     V,S. did not visit the trainer about her injury;

15.     \¡.S,'s rnother took V.S. to Mexico for shots to     treat-   her injury.

16.     llere is jnsut'ficient   evidence   to support a finding that Mr, Montalvo prevented         or
        cliscouraged V,S. from going to the trainer for her injury.




                                                                                          MONTALVO V. SBEC
                                                                                          0062
 sollH DocKET NO. 70r-t t-8468,8C                  PROPOSAL FOR DECISION                            PAGE 54


 17        Mr. Ivfontaìvo did not allow V.S. to compete in the next th¡ee meets follorving the Donna
           rneef:,


  I 8,,    Iollowing her injury, V,S, underwent stretching, nrb downs, ice baths, and whirlpool use
           under Mr, Montalvo's direction.

 19.       V.S. gradually began to work out following her iqjury, and resumed competing in early
          April2008.

 20,      N4r. Mont¿rlvo gâve V,S., ancl othe¡ students, rub downs.

21t       There is insufficient evidence to support a finding that the rub downs rvere sexual and
          involved inappropriate touching.

22.       On trvo or three occr¡riions, student atbletes visiled Mr. Montalvo's home to use his
          .lac¡zzi in the master bath. 'lhe athlete.s wore sports bras or bathing suít tops, and brief
          "bikers" shofis,

21,       On one occasion, V.S, went alottc to lrlr, Montalvo's house to use the Jacuzzi

24,       There is insufficient evidence'to support a finding that Mr. Montalvo sexually abused or
          assaulted V.S. rvhen she went to use the Jac¡v;zi.

25',      There is insufficient evidence to support a finding that Mr. Montalvo sexually abused or
          assaulted V.S. in the field house.

26.       Fïom February through June 2008, lvfr, M.ontalvo engaged in approxirnately 480 phone
          calls with Student I , wirh over 80 of the. calls placerl after l0:00 p.m.

2'.1.     The phone calls were atrout V,S.'s track performance and cmotional issues. The calls did
          not relate to or constitute a sexual or rornantic solicitation or relationship         betu,een
          Mr, Monralvo and V.S.

28.       'l'hereis insuf'ficient eviclence to support a finding of any inappropriate touching, or
          sexual or romantic solicitatìon or rclationship, between Mr. Montalvo and V,S.

29.       Tlrere is insuflìoient evidence ¿o supporl a finding that Mr, Montalvo knowingly treated
          V.S. in a lltanuer that adversely alf'ected her leaming, physical heahh, mental heahh, or
          salèty.

30.       There is illsulfficielrt evidence 10 suppoÍ a findiug that Mr. Montah,o intentionally,
          knowingly, or reckJessly engagecl in plrysical mistreatmenl, neglecr, or abusu- of V.S.

31.       \r.S. graduated from high school in May 2008 and   lel't"   lbr collcge that Augus[.




                                                                                             MONTALVO V. SBEC
                                                                                             0063
soAH DOCKET NO. XXX-XX-XXXX.8C                   PROPOS^{L F'OR DECISION                  P,AGE.55



32.     At some point dudng the 2008-2009 academic year, V.S, told a counselor at her college
        and her fzunily that Mr. Montalvo had sexually assaulted her in thc spring of 2008.

33.     In 2009, Mr. I\4ontalvo was chargcd rvith t\¡¡o connts of second-clegree felony improper
        relationship between educator and student. I-Ie was indicted in October 2009, and
        acquittecl of bolh counts follorving a jury 1rial.


                                IV,   CONCLUSIONS        OIT   LAW

1   .   SBEC has .iurisdiction over this matter. Tex. Educ. Code $21 .03    I.


2,      SOAH has jr.risdiction over the hearing in this proceeding, including the authority to
        issue a proposal for decision with proposed fìndings of fast and conolusions of law, Tex.
        Gov'l Code ch. 2003.

),      Proper ancl timely notice of the hearing was provided. to Mr. Montalvo. Tex, Gov't Code
        ch.2001.

4,      Staffhad the burden of proof,

        SBEC may take clisciplinary actíon against an educator rvho has violated the Educator's
        Code of Elhics or is unworthy to insûuct or supervise the youth of this state. 19 Tex.
        A<Imin. Code $ 249.15(bX2) and (3).

6.      'Ihe foregoiirg frinclings of Fact do not support conclusions that Mr. Montalvo violatecl    '.

        Standards 3.2,3.5, or 3.6 of tlrc-Educators' Code of Ethics, 19 Tex, Admin. Code
        ç 247.2(b)(3XB), (E), and (F) [now $ 24'1.2(3)(B), (E), and (F)],

'1,.    The foregoing Findings of lract do not support a conclusion that Mr. Montalvo is a person
        unrvodry to instruct or superv'ise the youth of this state.

$,      SBEC is not authorized to take disciplinary action against Responde¡tt's Texas Educator
        Certificate.


        SIGNED NÍay 7,2012,,



                                        SHANNON KILGORE
                                        ÀÐMINISTRATIVE LA\ry JUDGE
                                        STATE O FIrt cE OÌ' ADTVIINISTR A,'I'IVE HEAIùN   GS




                                                                                     MONTALVO V. SBEC
                                                                                     0064
                            CASE NO. 03- 1 3-00370-CV



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



           STATE BOARD FOR EDUCATOR CERTIFICATION ANd
      MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
TFIE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
                      CAPACITY ONLY,
                            Appellant,

                                         v

                             ERASMO MONTALVO,
                                  Appellee.



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


                               APPELLANTS' BRIEF




                                APPENDIX E
                                  TEXAS ADMINISTRATIVE CODE
                                       ¡t,'t   * ARCHIVE DATA ***

'I,'I.:I.   THIS DOCUMENT REFLECTS ALL RULES IN EFFECT AS OF DECEMBER 31,2008
                                                      ,1.   tl.   tt



                               TITLE 19. EDUCATION
               PARTT.STATEBOARDFoREDUCATORCERTIFICATION
        CHAPTER 249. DISCIPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED
                                       CASES
                  SUBCHAPTER B. ENFORCEMENT  ACTIONS AND GUIDELINES

                                          19    TAC ç249.ts (2008)

5 249.15.      Disciplinary Action by State Board for Educator Certification

  (a) pursuant to this chapter, the State Board for Educator Certification (SBEC) may take any
                                                                                               of
the following actions:

                                                                                                  or
(1) place restrictions on the issuance, renewal, or holding of a certificate, either indefinitely
for a set term;

(2) issue an inscribed or non-inscribed reprimand;

(3) suspend a certificate for a set term or issue a probated suspension for a set term;

(4) revoke or cancel, which includes accepting the surrender of, a certificate without opportunity
for reapplication for a set term or permanently; or

(5) impose any additional conditions or                                                   deems
necessary to facilitate the rehabilitation
                                                                                          rorto
protect students, parents ofstudents, school per

(b) The SBEC may take any of the actions listed in subsection (a) of this section based on
satisfactory evidence that:

(1) the person has conducted school or education activities in violation of law;

(2) theperson is unworthy to instruct or to supervise the youth of this state;

(3) the person has violated a provision ofthe educators' code ofethics;

(4) the person has failed to report or has hindered the reporting of child abuse or the known
criminal history of an educator as required by law and ç 249.14 of this title (relating to
Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition);

(5) the person has abandoned a contract in violation of the T'exas Education Code. $8 21'105(c),
2l .l 60(c), or 21 .21 0 (c);

(6) the person has failed to cooperate with the Texas Education Agency (TEA) in an
investigation; or

(7) the person has committed an act described in $ 2a9Ja@) of this title (relating to Complaint,
àáquirËa Reporting, and Investigation; Investigative Notice; Filing of Petition), $ 249.12(b) of
ttris title (reúting tõ Administrative Denial; Appeal), or $ 249.16(b) of this title
                                                                                     (relating to
Eligibility of   peisons with Criminal Convictions for a Certificate under Articles   6252-l3c and
 6252-13 d, Revised Civil Statutes).

(c) The TEA  s                        aco                          of
iaj of thissect                      tion                          in
àéscribing the                       ue a                           th
the sanction. The certificate holder shall have   3                to
5 249.27 of this title (relating to Answer).

(d) Upon the failure of the certificate hol                                                 chapter'
ìrtá rËa staff may file a request for thei                                                  imposing
the proposed sanótion in acôordance with ç     249                                          Prior to
Hearing; Default).

                                                                                   the case will be
(e) If the certificate holder files a timely ans\ryeï as.provided in this section,
                                                                                    in accordance with
referred to the state offrce of Adminisirative Hearings (SOAH) for hearing
the SOAH rules; the Texas Government Code, Chapter 2001; and             this chapter'


(f) The
 ground
 default
 pursue available civil, equitable, or other legal
 SBEC under this chaPter.


                                                                                24 TexReg
 SOURCE: The provisions of this ç 249.15 adopted to be effective March 31,1999'
 2304; amended to be effective Decembe r 16, 2007, 32 T exReg 9 I 12
                            CASE NO. 03- 13-00370-CV



                       IN THE COI.JRT OF APPEALS
              FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN



          STATE BOARD FOR EDUCATOR CERTIFICATION ANd
     MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
                     CAPACITY ONLY,
                           Appellant,

                                         V


                             ERASMO MONTALVO,
                                  Appellee.



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


                               APPELLANTS' BRIEF




                                 APPENDIX F
                                                                                             Page I




|"        LexisNexis"
I of 2 DOCUMENTS
                             TEXAS ADMINISTRATIVE CODE

                                  t;r,:r,   N{CHIVE DATA *t"r'

* * {.   THIS DOCUMENT REFLECTS ALL RULES IN EFFECT AS OF'DECEMBER 3 I,
                                               2008:lt¡l'¡F


                                   TITLE 19. EDUCATION
         PART 7. STATE BOARD FOR EDUCATOR CERTIFICATION
 CHAPTE R 24g . DI SCIPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED
                                  CASES
                    SUBCHAPTER A. GENERAL PROVISIONS

                                     lerAC 924e.3             (2008)


ç 249.3. Definitions
                                                                                   have the fol-
   The following words, tems, and phrases, when used in this chapter, shall
lowing meaningi, unless the context clearly indicates otherwise'
    (1) Administrative denial--a decision or action by the Texas Education Agency
                                                                                          (TEA)
staff to deny a person any of the following based on the withholding or voiding
                                                                                      of certifica-
tion test ,.ó..r; the invaiidation of a certification test registration; or evidence
                                                                                     of a lack of
good moral character or improper conduct:
    (A) admission to an educator ptepatalion program;
    (B) certifrcation (including certification following revocation, cancellation, or surrender
of a previously issued certiflrcate) or renewal of certification; or
    (c) reinstatement of a previously       suspended certificate.

    (2) Administrative law judge (ALJ)--a person appointed by the chiefjudge of the State
                                                                                         2003.
Office of Administrative fr.*i"gr (SOAH) under Texas Government Code, Chapter
    (3) Answer--the initial responsive pleading filed in reply to factual and legal issues
raised by a petition.
    (4) Applic ant--a party seeking any of the followin-g from the TEA staff or the State
                                                                                           of a
Board for Educator ðertiflrcationlSBeC): issuance of a certiftcate (including issuance
new certif,icate following revocation, cancellation, or surrender of a previously issued cer-
tificate); renewal of a certificate; or reinstatement of a suspended certiflrcate.
     (5) Cancellation--the invalidation of an eroneously issued certificate.
    (6) Certificate--the whole or part of any certificate, permit, approval, endorsement, or
simìtát form of permission issueà by the TEA staff or the SBEC. The official certificate is
the record of the certificate as maintained on the SBEC's website.
    (7) Certificate holder--a person who holds a certificate issued under the Texas Education
Code (TEC), Chapter 21, Subchapter B.
    (8) Chair--the presiding officer of the SBEC, elected pursuant to the TEC, $ 2l .036, or
other p..ron designated Uy ttre chair to act in his or her absence or inability to serve.
   (9) Chiefjudge--the chief administrative law judge of the soAH.
   (10) code of Ethics--the code of Ethics and Standards of Practices for Texas Educators,
p.n.ru.t to Chapter 247 of this title (relating to the Educators' Code of Ethics).
   (11) Complaint--a written statement submitted to the TEA staff that contains essential
                                                                             provides
factì aíleging improper conduct by an educator, applicant, or examinee, and
grounds for sanctions.
    (12) Contested case--a proceeding under this chapter in which the legal rights, duties,
                                                                 an opportunity for an adju-
and prívileges of aparty ut. to be deãermined by the SBEÇ after
dicative hearing.
                                                                                           in-
    (13) Conviction--an adjudication of guilt for a criminal offense. The term does not
                                                             judge has not proceeded to an
clude tíre imposition of deiened adjudication for which the
                                                                            Article 42't2'
adjudication of guilt, except as provided by code of criminal Procedure,
    (14) Disciplinary proceedings--contested case proceedings before the TEA
                                                                                  staff, the
                                                                             filed  under this
soAH, and the sBEó that commence when a request for hearing is timely
 chapter.
                                                                                    TEC,
     (15) Educ ator-aperson who is required to hold a certificate issued under the
 Chapter 21, SubchaPter B.
                                                                                    SBEC or
     (16) Effective date--as applied to a non-rulemaking decision or action by the
                                                                     the appropriate legal au-
 the TEA staff, the date the deìision or action becomes final under
 thority.
     (17) Examinee--a person who registers to take or who takes a basic skills examination
                                                                                     comprehen-
 prescri|ed by the sgÉc for admissión to an educator preparation program or a
 ,irr. .*u-ination prescribed by the SBEC for a certificate.
      (1g) Filing --aîy written petition, answer, motion, response, other written instrument, or
 iteÀ approprø.ty rtled with the TEA staff, the SBEC, or the SOAH under this chapter'
    (19) Good moral character--the virtues of a person as evidenced, at a minimum, by his or
her noí having committed crimes relating directly to the duties and responsibilities of the
education profession as described in ç 249.16(b) of this title (relating to Eligibility of Per-
sons with ôriminal Convictions for a Certiflrcate under Articles 6252'I3c and 6252'13d,
Revised Civil Statutes) or acts involving moral turpitude.
    (20) Informal conference--an informal meeting between the TEA staff and an educator,
appiicant, or examinee; the purpose of such a meeting being to give the person an oppor-
tunity to show compliance with all requirements of law for the granting or retention of a
certificate or test score.
    (21) Invalidation--rendered void; lacking legal or administrative efficacy.
    (22)Law--the United States and Texas Constitutions, state and federal statutes, regula-
tionì, -1.r, relevant case law, and decisions and orders of the SBEC and the commissioner
of education.
                                                                                         pro-
   (23) Mail--certified United States mail,return receipt requested, unless otherwise
vided by this chaPter.
                                                                    who are present and vot-
    e$Majority--amajority of the voting members of the SBEC
ing on the issue at the time the vote is recorded'
                                  per conduct including, but not limited to, the following: dis-

                                 ï'iJî""ilf i'ïÍ.i""'åll;:":'ffiJ'"î;'*;ilii3:i:i'
related offenses as described in g 249.r6(b) of this title (relating to
                                                                        Eligibility of Persons
                                                                                          Revised
with Criminal Convictions for a Certificate under Articles 6252'I3c and 6252'13d,
Civil Statutes); or acts constituting abuse or neglect under the Texas Family Code, $
 261.00t.
                                               participate in      a contested case under   this
    e6)party--each person named or admitted to
 chapter.
                                                                                          the
     (27) person--any individual, representative, corporation, or other entity, including
                                                                                      any other
 follòwíng: an educátor, applicant, õr examinee; the-TEA staff, SBEC, or SOAH;
 agency or instrumentaíity ãf federal, state, or local government; or any
                                                                          public or non-profit
 corporation.
      (2S) petition--the written pleading filed by the petitioner in a contested case under
                                                                                             this
 chapter.
      (29) petitioner--the party having the burden of proof by a preponderance of the
                                                                                          evidence
                                                                                includes the fol-
 i., urrv contested case héaring or proceeding rnder this chapter. The term
 lowing persons:
     (A) the TEA staff;
    (B) a person appealing the administrative cancellation of scores based on irregularities
 involving a TEA-administered test; and
    (C) a person appealing the administrative denial of any of the following: (i) certihcation
(including certification following revocation, cancellation, or surrender of a previously is-
sued certificate) or renewal of certification; or (ii) reinstatement of a suspended certif,rcate.
   (30) Presiding officer--the chair or acting chair of the SBEC.
   (31) Proposal for decision--a recommended decision issued by an ALJ in accordance
with the Texas Government Code, $ 2001.062.
   (32) Quorum--a majority of the 14 members appointed to and serving on the SBEC pur-
suant to the TEC, g 21.033; eight SBEC members, as specif,red in the SBEC Operating Poli-
cies and Procedures.
  (33) Reinstatement--the reactivation to valid status of a certiflrcate suspended by the
sBEC;the lifting or discharging of a suspension on a certificate.
    (34) Representative--a person representing an educator, applicant, or examinee in mat-
ters arising under this chapter; in a contested case proceeding before the SOAH, an attorney
licensed to practice law in the State of Texas.
    (35) Reprimand--the SBEC's formal censuring of a certificate holder.
   (A) An "inscribed reprimand" is a formal, published censure appearing on the face of the
educator's virtual certiflrcate.
    (B) A "non-inscribed reprimand" is a formal, unpublished censure that does not appear
on the face of the educator's virtual certihcate.
    (36) Revocation--a sanction imposed by the SBEC permanently invalidating an educa-
tor's certificate.
    (37) Respondent--the party who contests factual or legal issues or both raised in a peti-
tion; the party filing an answer in response to a petition.
    (38) Sanction--
    (A)   disciplinary action by the SBEC, including a restriction, reprimand, suspension,
          a
surrender, or revocation of a cettiftcate;
    (B) a reasonable and lawful punitive measure imposed by the ALJ or presiding officer
against aparty,representative, or other participant involved in a disciplinary proceeding,
hearing, or other matter under this chapter.
    (39) State Board for Educator Certification--the SBEC aclingthrough its voting mem-
bers in a decision-making capacity.
    (40) State Board for Educator Certification member(s)-'one or more of the members of
the SBEC, appointed and qualified under the TEC, $ 21.033.
    (41) Sunender--an educator's voluntary, permanent relinquishment and invalidation of a
particuiar certiflrcate in lieu of disciplinary proceedings under this chapter and possible rev-
ocation of the certiflrcate.
    (42) Suspension--a sanction imposed by the SBEC temporarily invalidating a particular
certificate until reinstated by the SBEC.
    (43) Test administration rules or procedures--rules and procedures governing profes-
sional examinations administered by the SBEC through the TEA staff and a test contractor,
including policies, regulations, and procedures set out in a test registration bulletin.
    (44) Texas Education Agency staff--staff of the TEA assigned by the commissioner of
education to perform the SBEC's administrative functions and services'
    (45) Unworthy to instruct or to supervise the youth of this state--the determination that a
person'is unf,rt to hold a certihcate under the TEC, Chapter 21, Subchapter B, or to be al-
iowed on a school campus under the auspices of an educator preparation program.
    (46) Virtual certificate--the official record of a person's certif,tcate status as maintained
on the SBEC's website.



SOURCE: The provisions of this ç 249 .3 adopted to be effective March 31, 1999,24
TexReg 2304;amended to be effective December 16,2007,32 TexReg9ll2
                            CASE NO. 03- 1 3-00370-CV



                        IN TFIE COURT OF APPEALS
              FOR TT{E THIRD DISTRICT OF TEXAS AT AUSTIN


          STATE BOARD FOR EDUCATOR CERTIFICATION ANd
     MICI{AEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
                      CAPACITY ONLY,
                            Appellant,

                                         V


                             ERASMO MONTALVO,
                                  Appellee.



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


                               APPELLANTS' BRIEF




                                APPENDIX G
906                          .
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                           CASE NO. 03- 1 3-00370-CV



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



          STATE BOARD FOR EDUCATOR CERTIFICATION ANd
     MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
                     CAPACITY ONLY,
                           Appellant,

                                         V


                             ERASMO MONTALVO,
                                  Appellee.



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


                              APPELLANTS' BRIEF




                                APPENDIX H
            REVISED

CIVIL STATI,]TES
                    .OF THE


      STATE OF'TEXAS
                                            SESSION OF   THE
ADOPTED AT THE REGULNR
     THIRTY-SÉ)CoN D LEGISTaTURF
                          1911




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   puBLIsHED BY   Àurnon¡TY oF THE srATE

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                                t9r ¡
                           ^uff¡N,
ú!u                    'l'¡ru¡ 4tl,-.Uou o.ttro¡¡-PuaÛ¡o.-C s.   14.




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                     bo   É4




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             mßy rdoÛlvo


                                                            'ót ô6¡tlllottor

         ,{tttciç 2?80' Úhtll Prclent ,;1$,*#Jîff;;'tîi"l:":Hî"ffi
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          'l'¡r'tæ 48.-Epuclæ¡ox+Pl¡nlro'-Cg'




l{-R, C. I'
                           CASE NO. 03- 1 3-00370-cv



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



          STATE BOARD FOR EDUCATOR CERTIFICATION ANd
     MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
                     CAPACITY ONLY,
                           Appellant,

                                         v

                             ERASMO MONTALVO,
                                  Appellee.


                                                                   Texas; Cause
On Appeal from the 200th Judicial District Court of Travis County,
         No. D-1-GN-12-002ggl; Before the Honorable Tim Sulak


                               APPELLANTS' BRIEF




                                 APPENDIX I
                                                                                       Flled Ín The Distríct Court
                                                                                        of Travis Courrty, Texas

                                                                                            tlAY 21          3
                                       CAUSE NO. D-1-GN-12-002991

ERASMO MONTALVO,                                    $      IN THE DISTRICT COURT OF
           Plaintffi                                $
                                                    $
v                                                   $      TRAVIS COLTNTY, TEXAS
                                                    $
THE STATE BOARD FOR                                 $
EDUCATOR CERTIFICATION,                             $
            Defendant.                              $      2OOTH   JUDICIAL DISTRICT


                     FINDINGS OF FACT AND CONCLUSIONS OX'LAW


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

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

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

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

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

                 it as such. Correspondingly, to the extent that any conclusion of law constitutes
                                                                                                   a
        adopts

        finding of fact, the Court adopts it as such'


                                              FINDINGS OF FACT


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

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

             State Boæd     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'

              701-ll-8468.EC, until the appellate court issues its ruling         in any appeal taken by

              Defendant.
2    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 frle   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 tïme), during which Plaintiff s ability to obtain

     employment consistent with his experience, trainïng, and education, would likely be

     si   gnificantly adversely affected.

3    The competing equities favor granting the injunction.


                                      CONCLUSIONS OF LAV/

I    The educator certifrcate        of Erasmo    Montalvo, Plaintifl was wrongfully revoked by

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

     was:

            a,   Not supported by substantial evidence;

            b.   Arbitrary and capricious; and

            c,   Characterized by a clearly unwarranted exercise of discretion,

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

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


      $2001 .r74(2)(E).

3     Because the Board's decision was arbitrary and capricious, the Coürt            is authorized     to


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

4.    Because the Board's decision was characterized           by a clearly unwaffanted exercise of

      discretion,       the Court is authorized to reverse the Board's decision, Gov't               Code


      $2001.174(2XF).


                                                     2
5.   If   Defendant State Board for Educator Certification is not enjoined from treating as

     revoked or revoking Plaintiff s educator certificate during the pendency            of any appeal

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

     adequate remedy.

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

7,   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.



      Signed on     the   A'Uurof l'{lI             ,   zot:


                                                          TIM




                                                   3
                           CASE NO. 03- 1 3-00370-cv



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



           STATE BOARD FOR EDUCATOR CERTIFICATION ANd
      MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
TTIE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
                      CAPACITY ONLY,
                            Appellant,

                                         V


                             ERASMO MONTALVO,
                                  Appellee.


                                                                   Texas; Cause
On Appeal from the 200th Judicial District Court of Travis County,
         No. D-1-GN-12-002ggl; Before the Honorable Tim sulak


                               APPELLANTS' BRIEF




                                 APPENDIX    J
                                                                                           Page I




Ü        LexisNexis'
1   of 4 DOCUMENTS

                               TEXAS ADMINISTRATIVE CODE

                                   {,*:r,   ARCHIVE DATA t*¡r.

    I''.'I, THIS DOCUMENT REFLECTS           ALL RULES IN EFFECT AS OF DECEMBER             31,
                                               2008 *t:r.

                            TITLE 19. EDUCATION
            PART 7. STATE BOARD FOR EDUCATOR CERTIFICATION
    CHAPTER 249. DISCIPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED
                                                CASES
                         SUBCHAPTER A. GENERAL PROVISIONS

                                       IgTAC 9249.s         (2008)


5 249.5. Purpose

     The purpose of this chaPter is:
     (1) to protect the safety and welfare of Texas schoolchildren and school personnel;
     (2) to ensure educators and applicants are morally f,rt and worthy to instruct or to super-
vise the youth of the state;
   (3) to regulate and to enforce the standards of conduct of educators and applicants;
   (4) to provide for disciplinary proceedings in conformity with the Texas Government
code, Chãpter 2o¡l,and fhe rulês 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
                                                                                    justly re-
Ceiification (SBEC) decisions to the end that disciplinary proceedings may be
solved; and
    (S) 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 3I,1999,24
TexReg 2304; amended to be effective December 16,2007,32 TexReg 9ll2
                           CASE NO. 03- 1 3-00370-cV



                        IN TTIE COURT OF APPEALS
              FOR TT{E THIRD DISTRICT OF TEXAS AT AUSTIN



          STATE BOARD FOR EDUCATOR CERTIFICATION ANd
     MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF
THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL
                     CAPACITY ONLY,
                           Appellant,

                                         V


                             ERASMO MONTALVO,
                                  Appellee.



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


                               APPELLANTS' BRIEF




                                APPENDIX K
SBEC Disciplinary Policy and Mission
Statement
DISCIPLINARY POLICY GUIDELINES


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

  (1) protect the safety and welfare of Texas schoolchildren and school personnel;
  (2) ãnsure 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
SBEC Mission             Core Principles, and Goals that were adopted on
February 6, 2009.

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

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

General Prínciples:

    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.   SgnC 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 ç 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,the 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 conductthat indicates dishonesty,
   untruthfulness, habitual impairment through drugs or alcohol, abuse or
   neglect of students and minors, including the educator's own children, or
   ,..kl.rr endangerment of the safety of others, may demonstrate that the
   person lacks gõod moral character, is a negative role model to students, and
   ão.r not possess the moral fitness necessary to be a certified educator.
4. ,,Unworthy 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) $$ 21.058 and 21.06Q. The SBEC 19 TAC $
     24g.3(45) definition of "the determination that a person is unfit.to hold a
    certificate under the TEC, Chapter 21, Subchapter B, or to be allowed on a
    school campus under the auspices of an educator preparation program"
    predates thô adoption of TEC $$ 21.058 and2L 060, and is based upon the
    îBC, Chapter 2i, Subchapter B grant of authority to the SBEC to "regulate
    and oversee all aspects of the certification, continuing education, and
     standards of conduct of public school educators." As a Texas Court of Civil
    Appeals ruled in the seminal case of M¿urs v. Matthews,270 S.W. 586
     (gZS),"unworthy to instruct" "means the lack of 'worth'; the absence of
    ihor. moral and mental qualities which are required to enable one to render
     the service essential to ttre accomplishment of the object which the law has
     in view." 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 conductthaloccurs 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 that 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 certificate, but
       must also consider the nature and seriousness of prior conduct, the potential
       danger the conduct poses to the health and welfare of students, the effect of
       the prior conduct upon any victims of the conduct, whether sufficient 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 ôónduct upon the educator's good moral character and ability to
       be a proper role model for students.

Mission Statement    (ßnck to tt¡p)


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
