## 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

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 ELLEN M. SAMETH Assistant Attorney General State Bar No. 17555550 ADMINISTRATIVE

## LAW

## DIVISION 

## OFFICE OF THE

## TEXAS

## ATTORNEY

## GENERAL 

## P. O. Box 12548 Austin, Texas 78711

-2548 Telephone: (512) 936

-1838 Facsimile: (512) 457

-4608 E

-mail: ellen.sameth@texasattorneygeneral.gov Attorney for Appellant, State Board for Educator Certification 

## April 27, 2015 ACCEPTED 03-13-00370-CV 5055113 THIRD COURT OF APPEALS

AUSTIN, TEXAS 4/28/2015 8:22:12 AM JEFFREY D. KYLE

CLERK

### ii 

## 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

## &MC

## CORMICK

## , 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.

### iii 

## 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

### iv



## 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

### v 

## 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

### vi



## 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 Bever

age 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

### vii



## 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

### viii 

## 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 f

or 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.

### ix 

## 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)

.

### x 

## 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.

### xi 

## 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.

### xii 

## 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.

### xiii



## 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

### xiv



## 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 ofAdministrative Hearings (SOAH).

### 1 

## 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

### 2



## 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 conductas found by theALJin 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), orsee 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

### 3



## 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

### 4



## 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

### 5



## 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

### 6



## 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

.

### 7



## 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.

### 8 

## 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.

### 9



## 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)

.

### 10



## 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.

### 11



## 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

### 12



## 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.

### 13



## 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

### 14



## 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

### 15 

## 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

### 16



## 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:

### 17 

## 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 onbeing found “unworthy to instruct

.”

6 

## Chapter 21, Subchapter B of the Texas Education Code is the chapter governing the certification of educators.

### 18



## 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:

### 19 

## 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.”

### 20



## (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

### 21



## 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.’” TheJordan case also specifically cites toMarrs
. SeeJordan, 334 S.W. 2d at 281

. As evidence ofjust 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

.

### 22



## 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 ver batim 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

### 23



## 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

### 24



## 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

.

### 25



## 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;”

### 26 

## 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

### 27 

## /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

### 28 

## 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

## &MC

## CORMICK

## , P.C. 2525 Wallingwood Drive, Bldg. 14 Austin, Texas 78746 mrobinett@brimarnett.com
/s/ Ellen M. Sameth Ellen M. Sameth Assistant Attorney General

### 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 CAUSE 

## NO. D-I-GN-12-002991 ü> 

## :{ É ^4 

### har 

## ó9 (J ,! +J l''' (J LT, : 

## rlÕ ,u 

### () 

### -í ¿:¡ 

### --Õ f) t-' :¡ ir_ 4 

### v 

### ERASMO 

## MONTALVO, 

## Plaintffi

THE STATE 

### BOARD FOR 

### EDUCATO R 

## CERTIFICATION, Defendant, 

## IN THE 

## DIS'|RICT COURT OF


### TRAVIS COUNTY, 

### TEXAS

$ 

### 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 

### appeal. 

### Plaintiff is ORDERED 

### to post security 

### in the amount 

## of 

## *¡ oQo.qoto secure 

### 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. 701-11-8468.8C



### TEXAS EDUCÂTION AGENCY, 

### EDUC^'IOR CERTIFICI\TION AND STANDARDS DIVISTON, Petitioner BEFORE 

### THE STATE OF'FICE

V, OF ERASMO 

### MONTALVO,.IR., Respondent 

### 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 educatorstulent 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)' $ $ $ $ $ $ $ $ s

MONTALVO V. SBEC 0067Conclusion 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 interpret.and apply SBEC policies and rules. See 34 'fexReg 

### 5421'22, Marrs v' lufulthews,270 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 conviction. 'Ihe rcsponsibility ancl discretion to make this weighty detern'rination is vested in the 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 educator-stt¡dent relationship that they are trustcd not to cross. The SBEC considers any violatiott 

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

MONTALVO V, SBEC 0068a 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 show that he is not presently worthy to hold a 'Iexas educator 

### celificate,
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: 

# loL. CAIN, Ed. DATE Note: Pttrstrctnt to Board 

### order No. 990705DP' issued under 

### I9 Tex. 

### ldmin' code $ 249'7(u), the presiding oflìcer of 

### the Sfate 

### Boardþr Edtrcalor Certificttlion may 'sign sn order on hehuUof lhe majority of members møking thetìnul decision on q case'

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

### CAUSE 

### NO. D-1-cN-12.002991

ERASMO 

### MONTALVO, 

### Plaintiff IN TTIE 

### DISTRICT COURT

v TRAVIS COIJNTY, 

### TEXAS 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 

### O- *l 

# :È.1 -rl ñ¡ 

# æl \,¡ I 

# æ, I 

# :Et

I 

## i En Ã$ 

## ciã el- () ''r= >\ UD = LJo o¡O 

### Ë,s EF 0)F u v _9 

### o ií ñ o

= 

### = N Ð :) U' o 

### ú õ ó E $ $ $ $ $ $ $ $ $ $ $

### SIGNED on the

# &uro¡ M 

## AÈc 

# Èl- .20-É



# Tì '.1. SU AGREED AS 

### TO 

### FORM 

### AND SUBSTANCE:



### EllenM. Sameth State Bar 

### No. 17555550 OTrICE OF THE AI.TORNEY GENERAL 

### AovIuISrR¡TIVE LAW DIvISION P.O. 

### Box 12548 

### Austin, Texas 78'l 

## ll'2548 Telephone; (5 I 

### 2) 936- t 83

# I Faosimiler (512) 

### 320'0167 

### E-mail: Ellen.Sameth@.oag.statc,fx.us ATTORNEY NOR DETENDANTS

C/N D- I -GN- t 2-00299 I ; Montalvo v SBEC ond Mlchael Berry Poge 2 ol2 

### Mark W. Robinett

state Bæ 

### No. 17083600 

### BRIMM, ARNETT, ROBINETT CONNERS 

### & MCCORMICK, P.C. 

### 2525 

### Wallingwood Drive, 

### Bldg. 14 

### Austin, Texas 78746 Telephone: (5 12) 

### 328'0048 

### Facsimile: (5 I 

### 2) 328'48 14 

### E-mail: mrobinett@brimarnett,com ATIOR¡IEV FOR PLAINTIFP

### 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 DSOAH 

### DOCKET NO. 701.1 I-8468.8C 

### TEXÄS EDUCATION AGENCY DDUCATOR CERTIFICATION AND SÎANDARDS 

### DIVISION, 

# ' Petitioner BEFORE 

### THE STATD OFFICD



## 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

Allegations Set X'orth in StafPs 

## Pleacling..... .............'.3 Unpled 

## M¿tters..,.., ,,,,,,,,,',,,,,,4 $ $ $ $ $ $ $ $ $

1. 2.



## 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

.Student 

### I's Parents 21 Diana Garzn-Louis, 

## LPC......., ....,.24 Rio Grande 

### City CISD Teachers nnd Colches.....................-...'.............26 Rio Grandc CirJ* 

### IIS Students and Itarents ¡;¡ìjìi¡';..¡'¡,r.1ir.,¿.;iz'¡,'t,,.¿,',,,;.,..34 a. b. c. d.

MONTALVO V. SBEC 0008soAH DOCKET NO. 701-11-8468.8C TAtsLE OF CONTENTS I'AGE 2



## 1. \ilitness 

## Credibility """"""' 43 

## 2, Sexual 

### Impropricty and

## Assault """""" 45 

## 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 0009SOAH DOCKDT NO. 70I-1I-8468.8C
TEXAS 

### EDUCATION ÄGENCY EDUCATOR 

### CERTIIÍICATION ANI) STANDARDS 

### DIVISION, Petitioner BEFORE THD 

### STATE OÍ'FICD

Vi, 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
General issues 

### of notjce or 

### jurisdiction are acldressed 

### in the 

### findings 

### of 

### fact. 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

Educ. Code $ 21,015. $ $ $ $ $ s $ $ $ OF

MONTALVO V. SBEC 001 0 

### ' TEA is authorizeii fo prot,ide adrninistrative fonctions and scr.liccs to SBEC. 'lex.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 

### IsoAH DOCKET NO. 701-11-8468.8C 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

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, 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 Subsequently, Respondent ÈnBaged 

### in sexual telations 

### witb Student 

## I on school property in the Field House. 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 N,lr. Monlalvo's .Answer at 2, a

a

a

a

MONTALVO V. SBEC 0012soAH 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 3soAH DoCKU',l' No. ?0I -l l-8468.I1C PROPOSAL FOR DECISION PAGE 5
sustained; those matters zrre 

### not 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' Code of Ethics,r{ 

### In this case, Staff conten<ls that 

### Mr. Montalvo is unworthy to supervise youth 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 (,When iszues not raised by

## the or

## intplied

, they sball be treated ìr, uti ."rp."o as if t¡ey hãd 

## be They

## were 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, Mr, Monøluo ob¡ã.t.d in his closing argument to these mattcrs as independenr bases for sanction, due to the fact lhut gruy *ere nó¡ pled. Trial Uy colnsettr is a nar:orv doctrine, applicable in exceptional cases, and where 'such an ob.iectiorr is 

## raise ' LLC v. T&IvI Sales & Envtl' Sys" ì76 S.W.3d 595, 

## 605 ining party does not object to teslirnony ã'n rlre irsuó 

## but 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 $ 24?.2(bXlXG) [now $ 247.2(lXG)], by failing to rvritten local school boa¡d policies, and other appticable state and federal [aws' ily in its pleading lvhat written policies or laws, aside from olhet'provisions allegedly violated. Staff flirther. alleges Mr. Montalvo "has comrnitted an act describcd 

### in 19 f'r\C ['l'ex. Admin, Codel conduct tlrit inclicates a risk to the healtl, sateîy, ot' rvelläre of a sludcnt or rninor, porent of a ernplo¡ree or proltssional colleague." 

### Tle cited rule (which is now subseclion (h)) establishes EA,s investigaiions, but irnposesio obìigalions o0 teachers, callnol be violaled by a teacher, and is for sanction ofa leacher.

MONTALVO V. SBEC 0014soAH 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 educator' s certifìcate must' be permanently revoked. 2 | 

## D. Sumrnary of the Evidence 

## 1. Overvierv Statïotlèred the testimony of the follorving witnessesi,

Student 

## l; Yolanda Sanchez, Student 1's mother; Salome Sanchez, Student 

### I's father; Rey Ramirez, the Rio Graude 

### Citi CISD Athletic Director; Esther Guera Pena, a formcr coach rvith thc Rio Glande City CISD; James Meguire, the head athletic trainer at the Rio Grande City 

### IIS; 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). a o
a a
a
a
a

MONTALVO V. SBEC 001 5soAH DOCK-ET NO. 701-l1"8468.8C PROPOSAL FOR DECISTON I,ACE 7
Diana Gzuza-Louis, a ljcensed professional counselo¡ who provided experl teslimony about sexual abuse; Ilicarclo 

### Altahil an employee 

### of the 

### Rio Crande 

### City CISD wþo worked with Mr. Montalvo during the time period in question; atrd 

### 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 

### K.r\., a student athlete 

### who rvas coached 

### by 

### Mr. Montalvo and was a teammate of Student 

### l; Dina Pena, a parent whose daughters were student athletes coached by Mr. Montalvo and who ì¡/ere teâmmates of Student 

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

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

## t

a 

### f:

a

a

o

a

a

a

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

### soAtl DocI(ET NO. 701-tl-8468.8C PROPOSAL FOR DECISION PAGE 8 

### I(.T., a student athlete 

### who was coached 

### by 

### Mr. Montalvo and tva.s a teammate 

### of Student 

### l; Ofelia Guerra, an elementary school teacher 

### with the 

### Rio Grirnde City CISD who has worked wjth Mr, Montalvo; Catherine Rubio, who is employed at North Grammar Elementary School and knows Mr. Montalvo; 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 

### 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... o

a

o

o

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

MONTALVO V. SBEC 0017 16 'fr. at 3 l -39soAH 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 

## IsoAH DOCKET NO, 701-t l-84ó8'EC PROPOSAL FOR DECISION PAGE IO

student 

## I rvenr on to say that, following her injury. 

### Mr, lr4ontalvo did not refer her to a trainer, telling her that lhe trainer would prevent her from compeling at the 

### distict meet' arid that her failure to cotnpete might put her scholarstrip in 

### jeopal'dy' She said she did rrot see a doctor' but her mother look her to Mexjco once or twice a rveek for shots to treat the 

### iojuty' V'S' began 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 massage her leg (al1d soDretimes lroth legs) fronr t]re dnkle to her back, incìuding her buttocks' She testified that he 

### would also 

### rub her 

### vagina. She said the massages 

### would occur before practice, after practice, ancl 

### a few times befote school, and 

### that they happenecl 

### in various locatious. The offensive touching did not happen all the time, sþe stated' lMhen he woulcl start to touch her in an inappropriate way, she would telt him to stop, but he would say that he needed 

### to massage the eutire area, and any straying vvas 

### inadvertenl' Nonetheless, she sAid' he kept doing 

## it. she stated that she kept allorving the massages because she wanted to get better so that 

### her scholarshìp 

### would 

### not be 

### in jeopardy, and 

### Mt'. Montalvo lcept rominding 

### her of that 

### possibility, She could not afford to go 

### to college without a scholarship''3 V.S. missed the next three meets clue to her injury, next cornpeti$g at the district meet in early April'3a


### At some point after the massages had become sexual, said 

### v's., Mr. Montalvo offered 

### her some 

### rnoney, She 

### testified 

### that, 

### at the tinre, her parents 

### were 

### sÍuggli¡g financíally' 

### Mr, Montalvo, awar.e 

### of this fact, told her that he had 52,000 with him, because he had just been paid, a:rd he oould give 

### it to 

### her. V.S. stated he tolcl her he could plovide the money 

### "if you do .somcthing 

### fol'me." She saicl that she {eclinecl, saying her parents would be 

### fine' V'S' inferrcd that he was conditionìng the offer 

### of money on sex, and told the 

### child Advocacy center that he

='' Tr. ar 5l-54,62,140, lt is unclear exactly what kind of shots V'S' received, or rvho administered lhem' 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 9soArI 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 criminal 

### trial, she testified that he had told her, "We don't have to have 

### sex. You can

### just suck 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 0020soAI.I DOCKET NO, 701-I l-8468.8C PROPOSAL FOR DECISION PACÈ I2

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 

### with stuclent 

### K.T,, who 

### did 

### qualify. Stuclent 

### *8"4f also went on the 

### tríp, According 

### rc V,S', 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 0021soAH 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 parents 

### llow 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 sclrolarship. a8

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. at '79, 105, 134, 154-151

.

MONTALVO V. SBEC o022soAH DOCKDT NO. 701-ll-8468.DC PROPOSAL FOR DECISION PAGE 14 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 stated, .,That,s what I had to do to have somebody in the apafiment rvith 

### me."5l Student 1 further 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 0023soAH 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'ningafìer" contraceplive.

MONTALVO V. SBEC 0024soaH 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.vith 

### no 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 0025soAH DocKET' NO. 701-l l-8468.8C PROPOSAL FOR DECISION PAGE ]? 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, her father sâid, .,I wanr to handle 

### this. 

### I will take her to the cloctors. 

### I clon't want bet seeing a traineL.,, Mr, Montalvo said he told V,S.'s 

### thúer he woulcl prefer for V'S. to see the trainer, but tbe father saicl the trainer rvould make her sit 

### out. In 

### Mr. r\4ontah,o's words, "Her paleuts rvere 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 testified that, after the rneet, he looked over the contract at the request of Student I 's parents, and 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
was seeing a doctor 

### in Mexico. Hcilever, at anofher point in his testilnony he stated thât he shoulcl have sent her to see the trainer, but he could not recall whethe¡ he did-so, and he also soid 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 0026soAH 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 

### "u"rylo" else had left.7o He also saicl that he occasionally gave V.S. rides home late 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 Tr. at 347 -348,384:386, 409, 411'412, 741-742, 800-801' ?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 0027soAH 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. 701-11-8468.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 0029soAH DocKET NO. 701-lI-8468.8C PROPOSAL.FOR DECISION PAGN 21
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 

### "óll"g.. Ms, Sanchez stated tilat V.S, has not r¡,anted Mr. Montalvo to go with them, but Mr. and 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 Staffs Exhibits 2and3; Respondenf s Exhibirs 4 and 5' 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 bouset5 'I'r. at 185-186, 192.

MONTALVO V. SBEC 0030soÄH 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 

### with 

### him. 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 0031soAII 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 0032SOAH 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 0033soAH DOCKET NO, 701-l l-8,168.8C PROPOS¿\L F'OR DECISION PAGE 25
V.S,, the testimony of V.S. in the crirninal trial, unspecified \Nitness statemenÌs' and a television 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 confusìon about some cletails 

### of events was consistent 

### with the disassociation experienced by
sonre victinrs 

### of .sexual 

### abuse. Irurther, said lr4s. Garza-Louis, 

### V'S,'s periodic display's 

### of emotion in her taped intewiew were consistent 

### with the behavior 

### of a 

### victim 

### of abuse wbo is 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' GanaLouis stated that sexuol abusers often begin to set up a situation for abuse by irrteracting with the 

### victim in a caretaking 

### lole, She pointed [o the massages V,S. said 

### Mr' Montalvo gave her' and lús lrelp in obtaining the sc.holarship she so wanted. In this'way, Ms. Garza-Louis said, a, sexual 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 as Mr. Montah'o's telling V'S' not to go to the t¡ainer with 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 ctesire not to disappoint as making her particularly vulnerable. 'fhe anxiety, cl.epression, and loss 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 creciibility at all; manv sexqal abuse victims wait some time before voicing their experiences, ìn 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 among victims, referred 

### to as "repetition cotnpulsion"' which is a tendency to repeat a harmful

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 0034soAH 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 I433. 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. 'oe Tr. ur 2i4,246,254-255. He said therc Ìs no policy that coaches cannot stretch atl]let€s, but that they 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
never seen him clo anything improper,rr 

### j

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 0036soÄH 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.

f2t 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 0037so^H DOCKDT NO. 701-ll-8468.8C PROPOSAL FOR DECISION PAGE 29 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. Meguìre, 

## it is not appropriate 

### to treât athletes 

### at 

## home' He 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 0038so^H DocKET NO. 701-ll-84ó8'IìC PROPOSALFOR DECISION PAGE 30
With respect to rub clorvrs in particular, ìt4r. Meguire said that it is fine for a coach to n¡b down an athlete before a competition, but 

### it is not appropriale 

### for a coach 

### to massage or ntb down an injurcd area as a 

### fonn of therapy. He stated that someone lvithout the expertise 

### of a trainer would lack the 

### ability to discern whether an injured a¡'ea should be massaged, and that 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 break, although the coaches cur call and get the trailtels to come and open the room up,l3l

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' She had previously been employed at the 

### Rio Grânde 

### City CISD for three years, including the 2007-2¡0¡acaclemic year, where she coached track as zut assist¿nt to lvlr' Morrtalvo.r33 i\,Ís. 

### Ln testified that she knew 

### V.S. According 

### to Ms. 

### Lu, V.S. was not lrustworthy bec¿use "her stories ,¡,ould alWays 

### change." Further, said 

### Ms. Lu, 

### V'S' had a reputation for being untnrtht'ul,r3a Ms, 

### Lu stated that she never saw 

### Mr. Montalvo do anytlring i:rappropriate 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 0039so/{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 house, on thc mats, once a week, 138 Ms, Lu said that she stayed aû ptactice until the last 

### girl letl, 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 intenuptions in service during a convet:satiott. 

### l4

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 0041soArr Docl(ET NO. 70I-t l-8468.8C PROPOSAL FORDDCISION PAGE 33 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 that, when he t¿lkecl lo Mr, lvlontalvo, the phone sornelimes got discÒrulected and they had fo call 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, ï'r.. al 689-?01. -fhese witnesses' rvritten statenrents are at Responclent's Exhibie l0 and 17.

MONTALVO V. SBEC 0042soAI{ 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 godfather for her Catholic confirmalion, when she was a sophomore in high school, ls8
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 0043soAH DOCKET NO. 701-l l-84ó8.8C PROPOSAL I'OR DECISION pÄcE 35
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 0044soAH 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 0045soAH 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 fbr the stretclring. 178

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
E.P. testifìed that, 

### in"the spring 

### of 2008, 

### Mr, Montalvo talked 

### to E.P. about V.S.'s 

### 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 0048soAH 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,asjumping 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.at67iMONTALVO V. SBEC 0049soAH 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 trâcl( season. They were not, however, teammates; V.S, hacl graduotecl by the time A.B. joined 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 0050soAH 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 0051soAH 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 0052so^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-fbrmoney 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 0053so1\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 thejury 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 0054soAH 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 0056soÀH 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 in heL Chihl Advocacy Center intelvicw whele thc- abuse occtuted, she r:eplied that il occun'ed at school and a1 Mr. Montaivo's hol¡le,

MONTALVO V. SBEC 0057so,{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 0058soAH 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 assertion 

### that 

### Mr. Sanchez insisted 

### he would 

### "take care 

## of' his daughter's 

### injury himself. 

### 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 0059soAH 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, "vould have beetr extremely inappropriate, they would not have adversely aft'ected V.S.'s 

### '* 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:



### V,, 

### I 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 0060soAH 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. 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 2

MONTALVO V. SBEC 0061J.,.

4., 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 '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. 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. 

### 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. 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. Student 

### I attended a track meet in Donna on March 

### l, 2008. 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, V,S. injured her hamstring at the Donna track meet and did not compete, V.S, was a star athlete in her senior year, aud the hamstring irUury early in the season rvas an emotional blow to her, District protocol required that injured students be sent to the trainer. Assistant Coach l-inda l"u rolcl V.S. to go to the trajner. Parents of injured atbletes do not have to agree to let their children go to the trainer. V,S. did not 

### visit the trainer about her injury; \¡.S,'s rnother took V.S. to Mexico for shots to treat- her injury. 5,

6"

7. 8,

9^, 

### l0

I 1,' 12.
13.
14.
15. 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. 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. There is insufficient evidence to support a finding that 

### Mr. Montalvo sexually abused or assaulted V.S. in the field house. 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. 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. 'l'here 

### is insuf'ficient eviclence 

### to support 

### a finding 

### of any inappropriate touching, or sexual or romantic solicitatìon or rclationship, between Mr. Montalvo and V,S. 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. 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. \r.S. graduated from high school in May 2008 and lel't" 

### lbr collcge that Augus[. 22.

25',

26.

2'.1.

28.

29.

30.

31.

MONTALVO V. SBEC 006332. soAH DOCKET NO. 701-11-8468.8C PROPOS^{L F'OR DECISION P,AGE.55


### 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 ajury 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. 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). 

### '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. 

### ),

4,

6.

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: (1) place 

### restrictions on 

### the issuance, 

### renewal, or 

### holding of a 

### certificate, either 

### indefinitely or 

### 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 

## rorto necessary 

### to facilitate the 

### rehabilitation 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 a

# co of iaj of this

# sect 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 the 

# i imposing the proposed sanótion 

### in acôordance 

### with ç

# 249 Prior to Hearing; Default). (e) 

### If the 

### certificate holder files a 

### timely ans\ryeï 

### as.provided 

### in this section, the case 

### will be 

### referred to 

### the state 

### offrce of Adminisirative Hearings 

### (SOAH) for hearing 

### in accordance 

### with 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.


### SOURCE: The 

### provisions of 

### this 

### ç 249.15 adopted 

### to be 

### effective 

### March 31,1999' 24 TexReg 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,

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

V



## APPENDIX FPage 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 The 

### following words, 

## tems, and phrases, 

### when used 

### in this chapter, shall have 

### the 

## following 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 certification 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 

### Office of Administrative 

# fr.*i"gr (SOAH) under Texas 

### Government Code, Chapter 2003. 

### (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 

### Board for Educator 

### ðertiflrcationlSBeC): issuance 

### of a certiftcate 

### (including issuance 

### of a

### 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 

### factì aíleging 

### improper conduct 

### by an educator, 

### applicant, or examinee, and 

### provides grounds 

### for sanctions. 

### (12) Contested case--a 

### proceeding under 

### this chapter 

### in which the legal 

### rights, duties, and 

### prívileges 

## of aparty 

## ut. to be deãermined 

### by the SBEÇ after an 

### opportunity for an 

### adju

### dicative hearing. 

### (13) Conviction--an adjudication 

### of guilt for a 

### criminal offense. The term does 

### not 

### include tíre 

### imposition 

### of deiened adjudication for which the 

### judge has 

### not proceeded 

### to an 

### adjudication 

### of guilt, except as 

### provided 

### by code 

### of 

## criminal Procedure, 

### Article 

## 42't2' (14) 

### Disciplinary proceedings--contested case 

### proceedings before the 

### TEA staff, the 

## soAH, and 

### the 

### sBEó that commence when a 

### request 

### for hearing is 

### timely filed under 

### this chapter. 

### (15) Educ 

### ator-aperson who is 

### required 

### to hold a 

### certificate issued under 

### the 

### TEC, Chapter 21, SubchaPter 

### B. (16) 

### Effective date--as 

### applied 

### to a 

### non-rulemaking decision or 

### action by the SBEC or the 

## TEA staff, the date 

### the 

### deìision or action becomes 

### final under the appropriate legal au

### thority. (17) Examinee--a person 

### who registers to take or who takes a 

### basic 

### skills examination 

### prescri|ed by the 

## sgÉc for admissión 

### to an 

### educator preparation 

### program or a 

### comprehen- 

## ,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 Persons 

## 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. 

### (23) 

### Mail--certified United States 

### mail,return receipt requested, unless 

### otherwise 

### provided by 

### this chaPter. 

## e$Majority--amajority of the 

### voting members 

### of the SBEC 

### who are 

### present and 

### voting 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 

## with Criminal Convictions 

### for a 

### Certificate under 

### Articles 

## 6252'I3c and 

### 6252'13d, Revised 

## Civil Statutes); 

### or acts 

### constituting abuse 

### or neglect under the Texas 

### Family Code, $ 

### 261.00t. e6)party--each person named or admitted 

### to participate 

### in a 

### contested case 

### under 

### this chapter. 

### (27) person--any 

### individual, representative, corporation, or other 

### entity, including the 

### follòwíng: an 

### educátor, applicant, 

### õr examinee; 

### the-TEA staff, SBEC, 

### or SOAH; any other 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 

### i., urrv contested case 

### héaring or 

### proceeding rnder 

### this chapter. The 

### term includes the 

## following 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 issued 

### 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 

### pursuant 

### to the 

### TEC, g 

### 21.033; 

### eight SBEC members, as specif,red 

### in the SBEC Operating 

### Policies 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 matters 

### 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) a 

### disciplinary action 

### by the SBEC, 

### including a 

### restriction, reprimand, suspension, 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 members 

### 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 

### revocation 

### 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 professional 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 

### aliowed 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

. OENDIùÀI¡ IrÄ\lVS' 

### ÄU't II On I ZI N C+ n'D INST^A'I PJ\'t'FNl- 

## 9F CÀN 

### 0EI¡T¡liD T DÄ0 

## Ir'

--PN'g CDN,TIFICATD. 

### E. B. No,

# ?64.1 O¡r¡rrræn 

### ló?' 

# ^ tlfi;"t"'"t3'¡l'f3ffii'ïå'ßt li""Tt'l"'! slããto;;"sv-ld-olcC,L.i"torrITH"lit, 

### lhll'åooo"troo. Bø 

## it o¡øleil, 

### Ùy lhø Lcghlohtre 

### of lha Btoto 

### of Tcnast



### foro enlteollctl, c¡'cntcr ¡tn omcrg-cr 

### it 

## ^i ätô 

### .iiititrrllonnl-rrrlc ru¡ttlr ä;.i,; 

# Ë *iizponilotl nnd 

### tl¡nt.thia I 

## iiä" 

## tifi.; tin pn*nngo, nncl 

## lt is no cnnctcd' 

### Ännt'ovod l\fnrah 30, 1011'

- 

### T'ül;;- 

### ;-tt;i -0o' 

### dovt ¿f I

### cr nrl iotrrn mon

### t'

### 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
STATE OF'TEXAS

ADOPTED AT 

# THE REGULNR SESSION 

## OF 

# THE THIRTY-SÉ)CoN 

# D LEGISTaTURF

1911

puBLIsHED BY 

## Àurnon¡TY oF THE 

### srATE qF TÈ'xAs



# .OF THE



# @ aurf¡N 8ßtllttNo coi¡?ANY ^uff¡N, 

### î¡I^t t9r ¡ú!u 

### 'l'¡ru¡ 4tl,-.Uou 

### o.ttro¡¡-PuaÛ¡o.-C 

### s. 14.

OÉ"ATTEE 

### trOI'BTUEN' 

### rEÀcIlERS', 0ERTIFIo'ÀTES 

### Àl{D rnx 

### AMINAIIONS'

oortlllcntô ' crð, ¡ ' bo É4.üåi'i'i'Dhsii;ri : : :

iìíd¡i'Åiri,iå' mßy rdoÛlvo


### 'ót ô6¡tlllottor 

### ,{tttciç 

### 2?80' Úhtll Prclent 

## i"'.i," ütY, town 

### or tli¡t'riot 

# ,;1$,*#Jîff;;'tîi"l:":Hî"ffi "åÏ'*iin"i'il'l'¡r'tæ 

### 48.-Epuclæ¡ox+Pl¡nlro'-Cg' 14' i'r90



### 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.

On 

## Appeal from the 200th 

## Judicial 

## District Court 

## of Travis County, Texas; Cause



## No. 

## D-1-GN-12-002ggl; Before the 

### Honorable 

## Tim Sulak



## APPELLANTS' BRIEF



## APPENDIX 

# IFlled Ín The Distríct Court of Travis Courrty, Texas 

### tlAY 21 3



### ERASMO 

### MONTALVO, 

### Plaintffi CAUSE 

## NO. D-1-GN-12-002991 

### IN THE 

### DISTRICT COURT OF


### TRAVIS COLTNTY, 

### TEXAS 

## v $ $ $ $ $ $ $ $ 

### 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 Conclusions 

### of 

### Law pursuant 

### to Rule 296 

### of the Rules 

### of 

### Civil Procedure regardíng that part 

### of the Judgment in 

### this case granting 

### Plaintiff s request 

### for a permanent 

## injunction. In
accordance 

### with 

### Rule 296, the 

### Court enters the 

### following Findings and 

### Conclusions' To the


### extent that any 

### finding 

### of fact may be construed as 

### a conclusion 

### of law, the 

### Court hereby adopts 

## it as 

### such. Correspondingly, 

### to the extent 

### that any conclusion 

### of law constitutes a 

### finding of fact, the 

### Court adopts 

### it as such'


### FINDINGS OF 

### FACT

Erasmo 

### Montalvo, 

### Plaintiff, has 

### shown 

### by a preponderance 

### of the evidence, 

### that he 

### will
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 I

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. The competing 

### equities favor granting the 

### injunction.
CONCLUSIONS OF 

### LAV/ 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,
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). 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), 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 3



### I

2

3

4.

# 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.

On 

## Appeal from the 200th 

### Judicial 

## District Court 

## of Travis County, Texas; Cause



## No. 

## D-1-GN-12-002ggl; Before the 

### Honorable 

## Tim sulak

APPELLANTS' BRIEF



## APPENDIX JPage 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 

### Administrative 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 

## Ceiification (SBEC) decisions 

### to the end 

### that 

### disciplinary proceedings may be 

### justly resolved; 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