## IN THE SUPREME COURT O F TEX AS

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### I N R E 

### S T A T E 

### B O A R D F O R 

### E D U C A T O R 

### C E R T IF IC A T IO N 

### , R E L A T O R

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O N P E T I T I O N F O R W R I T O F M A N D A M U S

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J U S T I C E G U Z M A N , joined by J U S T I C E B R O W N , concur

ring

.
The State Boa

rd for Educa tor Certifica tion ha s wisely observe d that “[a] ce rtified educator h o l d s a u n ique pos ition of publ ic t rust with almost unpara lleled access to the hearts and mi n d s o f impressionable students. The conduct of an educator must be held to the highe st standard.” 19 T E X . A D M I N . C O D E § 249.5(b)( 1). Be cause the Court corr ectly conclude s that a trial court has discretion
t o d en y s u spension of a non-money judgme nt when the State files a notice of appea l, I join its opinion. But I also write separ ately today beca use I believe the rec ord befor e us fails to aff irmatively indicate that the trial court considere d the potentially signific ant harm to schoolchildren before eff ectively reinstating Erasmo Montalvo’s educator cer tificate pending the outcome of the appea l. There fore , Irespe ctfully

concur in the Court’s denial of the petition for writ of manda mus. We revie w a trial court’s order g ranting or denying an injunction under an abuse of discretion standard. Butnaru v. Ford Motor Co. , 84 S

. W

. 3d 198, 204 (Tex. 2002). A trial court abuses its discretion if it acts without ref ere nce to g uiding rules and principles. Downer v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 241–42 (Tex. 1985). Our g uiding principle for issuing injunctions is that trial courts should balanc e the competing equities by weig hing the probable harm to theplaintiff if an injunction is err oneously denied ag ainst the probable harm to the defe ndant if an

injunction i s err oneously g rante d. See In re Gamble , 71 S.W .3d 313, 317 (Tex. 2002); Storey v. Central Hide & Rende ring Co

. , 226 S.W .2d 615, 618–19 (Tex. 1950). I f the injury to the complainant is slight compar ed to the injury cause d to the defe ndant and the public , re l i ef will ordinarily be ref

used. Storey , 226 S.W .2d at 619. But the injunctive relief the trial court aff ords and its proce dure for doing so are differ ent matters. Substantively , we will u p h o l d a trial court’s injunction unless, afte r sear ching the rec ord, it is clea r that the trial court’s decision was arbitra ry and

unrea sonable. See Simon v. Y ork Cr a n e & R i

gging Co. , 739 S.W .2d 793, 795 (Tex. 1987). But proce durally , the trial court must indicate that it weig hed the competing equities; if the rec ord does
not aff irmatively indicate the trial court did so, then this failure is a depar ture from g uiding principles and amounts to a

n abuse of discretion. See, e.g. , Nath v

. Tex. Children’s H osp. , __ S.W .3d __, __ (Tex. 2014) (re manding for trial court to assess an omitted but rele vant element for deter mining the
amount of sanctions). I n such case s, a rema nd is appropr iate to enable the trial court to demonstrate that it weig hed the c ompeting e quities. Id

. Her e, before issuing t he inj unction, the trial cour t was required to balanc e the threa t to the safe ty and welfa

re of Texas sc hoolchildren if an unfit educator is a llowed to te ach and the harm to the educator if he is deprive d of the opportunity to ear n a living as a t ea ch er d u ri n g t he appea ls proce ss. I mportantly , balanc ing these equities involves more than mer el y identify ing two sides. I nstead, “[t] hese conflicting interests call for a solution of the question by the applica t ion of the broad principles of rig ht and justice.” Storey , 226 S.W .2d at 619. But here , the trial court’s finding s of fa ct and c onclusions of law only addre ssed the potential har m to Montalvo:

2Erasmo Montalvo, Plaintiff, has shown by a preponde ranc e of the evidenc e,

that he will be irrepa

rably harme d if a perma

nent injunction is not issued prohibiting the Def endant State Boa

rd for Educa tor Certifica tion from trea ting as re voked or revoki n g h i s educa

tor cer tificate based on the fac ts and alleg ations relied on by Def endant in SOAH docket No. 70 1-ll-8468.EC, until the appellate court issues its ruling in any

appea l taken by

Def endant. Plaintiff has s h o wn by a preponde ranc e of the evidenc e that, based on the history of this case , the har

m to him i s immi nent. I t is probable that the D efe ndant will file a Notice o f Ap p eal, claim that its Notice automatically superse des the injunction, and repr esent that Plaintiff’s educator cert i fi ca t e is revoke d during the pendenc y of the appea l, (which may involve an indefinite extended period of time), during which Plaintiff’s ability to obtain employ ment consistent with his experience , training , and educ ation, would likely be sig nificantly

adver sely

aff ecte d. As the Court observe s, this int ere st is si g nificant a nd war rants full consider ation. But of at least equal import is the interest of schoolchildren in not being exposed to the harm of interac tion with a teac her who fails to understand the p ro p er bounds of the student-teac her rela tionship. The rec ord befor e us ref lects the trial court g ave only cursor y (if any ) considera

tion to the safe ty and welfa

re of Texas students, decla ring only that “[t] he competing equities favor g ranting the i njunction.” But evidence undisputedly indicates that Montalvo, a high s chool t rac k and field

coac h and an elementa ry sch o o l phy sical education coac h, allowed a teena g e fema le student—wea

ring only a sports bra

and biker shorts—to use the jacc uzi in the master ba throom of his home while no one else was prese nt, called that fema le student over 480 times over a four- month period (with over 80 calls occur ring afte r 10:00 p.m.), g ave sever al fema le athletes “rubdowns” and ice baths, and failed to follow district protocol t o send an injured at h l et e t o t h e trainer

. The S tate Boa rd for Educa tor Certifica tion deter mined these actions exceede d the bounds of the proper educator-student rela tionship and violated the trusted position of authority aff orded to Texas school
teac hers. Allowing Montalvo to c o n ti n ue teac hing afte r willingly exceeding the bounds of the proper

3student-teac her rela tionship could substantially harm the safe ty and we lf a r e o f T e xa s s c h o o lc h il d

r en. I f particula

r considerations cause d the trial court to view the harm to Monta lvo a s outweig hing the potential harm to schoolchildre n, the cour t should have said so. The question is not whether a trial court could fully balanc e the competing equities and arr ive
at this trial court’s conclusion. That b al an ci n g is within the trial court’s discretion and we will uphold tha t substantive decision when supported by some evidenc e. B ut pr ocess matters, and this Court has long been the cre ator and g uardia n of those proce sses. Whil e we cannot arbitra rily chang e

a trial court’s result, we can ensure that trial courts abide by the time-honored proce ss of balanc ing the competing equities. And the rec ord (such as finding s of fac t or a hear ing transcr ipt) provides our only method of knowing that balanc ing occur red. The rec ord here is simply devoid of fac tual support that the trial cour t considere d the potential spec ific har m to schoolchildren if the e ducator is allowed to teac h pending the outcome of the appe al. But while the rec ord fails to indicate the trial court balanc ed the competing equities, the State Boa rd for Educa tor Certifica tion, as the rela tor in this mandamus proce eding , has the burden of proving that the trial court clea rly abused its discretion. W alker v. Pack

er , 827 S.W .2d 8 3 3 , 8 3 9 (Tex. 1992). The Boa

rd limit ed its arg ument to the asser tion that the trial court lacke d discretion to g rant an injunction dur ing the pendenc y of the appea l—not that it r etained discretion but a bused it g iven these fac ts. Whil e the rela tor here has not reque sted relief for the trial court’s particula r abuse of di scre tion, it is para

mount that trial courts be cog nizant of t heir obli g ation to fully demonstrate the calc ulus they ty

pically eng ag e in when g ranting injunctions. Acc ording ly , I concur in the Court’s denial of the petition for writ of manda mus.

4____________________________________ Eva M. Guzman J ustice

OP INION DELIVERED: Dec ember 19, 2014

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