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

 FILED IN 3rd 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 & MCCORMICK, P.C.

2525 Wallingwood Drive, Bldg. 14

Austin, Texas 78746

Telephone: (512) 328-0048, x110

Facsimile: (512) 328-4814

E-mail: mrobinett@brimarnett.com

 

1 Michael Berry was released as a Defendant by Agreed Order dated March 28, 2013. See App. 

C.
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 Beverage Comm’n. v. Sanchez, 

96 S.W.3d 483 (Tex. App.—Austin 2002, no pet.)................................................3

Tex. Alcoholic Beverage Comm’n. v. Sierra, 

784 S.W.2d 359 (Tex. 1990) ..................................................................................3

Tex. Health Facilities Comm'n v. Charter Med.–Dall., Inc., 

665 S.W.2d 446 (Tex. 1984) ..................................................................................3

Tex. State Bd. of Dental Exam’rs v. Sizemore, 

759 S.W.2d 114 (Tex. 1988) ..............................................................................3, 4

TGS NOPEC Geophysical Co. v. Combs, 

340 S.W.3d 432 (Tex. 2011) ................................................................................11

Triantaphyllis v. Gamble, 

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

Vista Healthcare, Inc. v. Tex. Mut. Ins. Co., 

324 S.W.3d 264 (Tex. App.—Austin 2010, pet. denied).....................................20

Zimmer US, Inc., v. Combs, 

368 S.W.3d 579 (Tex. App.—Austin 2012, no pet.)............................................13
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 for Temporary Restraining Order, 

Temporary Injunction and Permanent Injunction. 

The trial court issued both a temporary restraining 

order and temporary injunction. Following the 

filing of an interlocutory appeal, this Court 

reversed and dissolved the temporary injunction 

for lack of a trial setting in the order. State Bd. for 

Educator Certification v. Montalvo, No. 03-12-

00723-CV, 2013 Tex. App. LEXIS 4389 (Tex. 

App.—Austin April 3, 2013, no pet.) (mem. op.).

On March 28, 2013, the trial court issued an 

Agreed Order Dismissing Michael Berry as a 

defendant. See App. C.

On April 29, 2013, the trial court issued its 

Judgment reversing the Board’s Order and issuing 

 

2

 “CR” refers to the Clerk’s Record. The number following refers to the page number. “AR” 

refers to the Administrative Record as this matter involved administrative proceedings at the 

agency level. The Administrative Record consists of nine volumes. The Administrative Record 

will be cited as, e.g., 2 AR *, where “2" refers to the volume and “*” represents a page number 

within the given volume. “FOF” and “COL” refer to findings of fact and conclusions of law, 

respectively.
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 of Administrative 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 conduct as found by the ALJ in

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

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

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

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

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

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

vague so as to deprive Montalvo of due process, and has passed muster with Texas 
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 on being 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.’”

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

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

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

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

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

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

Admin. Code 249.5.
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 verbatim

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

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

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

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

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

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

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

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

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

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

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

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

relationship.” I AR 69, or see App. B

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

master bathroom to use the Jacuzzi, illustrates a lack of judgment on Montalvo’s 
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 studentteacher 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 & MCCORMICK, 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 ,!

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f) t-'

:¡ ir_ v 4

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 aboveentitled 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)'

$

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s

MONTALVO V. SBEC

0067
Conclusion of Law 7l

Basecl on Findings of Fttct ll, 14, 18,20,22,23 and26, Respondent exceeded the bounds of the

proper educator-student relationship and is a person unworthy to ínstruct or supervise the youth

of this state.

Conclusion of Law 8:

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

Conclusion of Law 9:

Respondent's educator certificate should be sanctioned'

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

2001.058(e) and are necessary because the Administrative Law Judge failcd to appropriately

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

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

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

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

Respondent's uctions crossed the bounds of an appropriate cducator'student relationship anrl

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

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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 D
SOAH 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

$

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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

0008
soAH 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

0009
SOAH 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.

$

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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 I
soAH 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,

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MONTALVO V. SBEC

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

2. Unpled Matters

In iis opening sratementT and closing zugnrnenls. Staffhas made amunber of additional

assertions, including that Mr. \4ontalvo: gave V,S, rides home; rubbed down and massagcd

female athletes, inclucling V.S,; stretched female athletes in a way that looked inappropriate;

allowed female athletes, including V,S., to take ice baths in the field house without a I'emale

coach present to supervise; was alone with female athletes, including V.S., in a hotel room; gave

female athletes, including V.S., gifts; lailed to refer V.S. for counseliug in conuection v"ith ber

suicidal thoughts; slappecl girls on tleir backsides; and took V.S, to be massaged by a female

coach who rvas not licensed or certified to give mâssages.8 Staff specificalty argues that manyïf

these assertions constitute bases for sanction,e

There are no factual allegations in Staff s pleadinglo to support any of these contentions,

rühile there are mùty factual assertions in Staffls pleading, there is uo mention of rides home,

stretching of female athletes, ice baùs, being alone with female athletes, gifts, handling of an

athlete with suicidal thorrght.s, Slapping of backsides, or a massage by an uncertified female

coach. As to massages, Staff s pleadirig alleges that Respondent massaged V'S. imrnediately

after ¡.er hamstring injury, that a massage on a later date became sexual, and that he told V-S.

that he needed to continue to massage her due to her injury.ll However, there is no allegation

that Mr. Montalvo should not have been engaged in non-sexual massages or rub dow¡rs of female

athletes, as Staff argues.

At hearin-r, Søff orally amended the. factual assertions in its pleading, but did ttot move

to include factual allegations going to arry of the matters describecl above, In his reply brief.

.Mr.lvlontalvo objected to Staft's going beyond the confines of itspleading'¡z The objection is

, , ,,(L-.. .;¡,. - t.

1 Tr, at 19.

* Peticioner's Clo.sing Argtrtnent a¡' 62o.

e Petitioner's Closing Ârgumcot at 20.

r0 Stafl--s Original Petition, as orally anrerrded at hearing.

rr Stafls Originaì Petition at 3-4,

r2 Respontlent's Post-l'leaLing repìy Brief at 7'

MONTALVO V. SBEC

001 3
soAH 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 SøffC. 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

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

The forms of disciplinary action SBEC may take against an eclucator include placing

restrictions or condìtions on an educator's certificate, issuing an ins<lribed or uninscribed

leprimand, suspending a certificate, ìssuirrg a probated suspension, and revoking a ccrtilìcats.re

SBEC and the ALJ are required to take the following factors into consideration in seeking,

proposing, or makìng a decision in enforcemsnt actions:

r Tlre serior¡sness of tbe violation;

. Whether tl¡e misconduct lvas premeditated or intentional;

¡ Attcmpted concealment ofmisconduct;

r Prior misconduct;

. Whether the sanction will deter future violations; and

. A¡y other relevant circumstances or facts,zo

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

relationship with a student (tlrereby violating Standarcl 3,6 of the Eclucators' Code of Bthics), the

educator' s certifìcate mus t' 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

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MONTALVO V. SBEC

001 5
soAH 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

?5 admitted at the hearing. h

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 -39
soAH DOCKET NO. 70r-11-8468.8C PROPO.SÄL FOR DECISIOÌ\ PAGE 9

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

s¡ould not run track. However, V.S. testified, "l tolcl them if I was going to clie, that I would die

* i rvould rather die at the track than anywheie else, so I wæ going to conlinue running

regardless." She said that her condition has improved.2T

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

competitions.2s That year only one student from Rio Grande City HS went to the state

competition, A,G. V.S. stated that she and trvo other girls traveled to Austin rvith A'G,, at

Ml, Montalvo's invitation, to ot'fet suppott during the state meet, While in Austin, said V'S',

Mr. tvlontalvo asked each girl to come into his hotel room fbr about 20 minutes, during which

time he gave each girt jewelry made by one of his re'latives'2e

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

parlicipation in track. The track season began in February and culminated in the state rúeet in

May, and t¡e college scouts rvere watching seniors rryho r,vere. competing' V,'S. and her parents

looked to Mr. Montalvo to help them with the scholarship application process' Mr' Montalvo

communicated with V,S,'s f'amily frequently. No one in'V'S,'s family had ever gone to

college,3o

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

A college scout $'as present to watoh her cornpele, According to V'S., the injury rnade it

clifficult for her to walk, She testified that lr4r. lvfontah,o went with her to the school bus, where

he massagecl her leg in a:r effori to get her to a point at u'llich she could compete. Coach Lu

nrassaged her, too. V.S, testilied that nothirrg inappropriate happened at that time. I)espite the

rub downs, she was unabìe to conrpete. She also stated that the college scout talked to her that

day ancloffered her a scholarship, despite her iujury. She ar.:oeptccl the scholarship.3r

2'- 'l't. at33-34.

28 'fr. at 41.

2" Tr. at 42-44.

)o Tr. at 45-47.

t' Tr, at 47-50,138.

MONTALVO V. SBEC

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

hacl ot1ered money for sex. V,S. acknowledged that, in her testimony in lvft' Montalvo's

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

0020
soAI.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

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

was nothing, she statcd, that he told hcr on the phone that he could not have told her during the

d"y.'o

V.S. complainecl that Mr. Montalvo stretched girls in inappropriate ways. She described

Jeg stretches in rvhich Mr, Montalvo was close to the girls' bodies. She saicl that the stretching

occunetl out in the tfelcl.as V,S. also stated that Mr, lv[ontalvo would snrack girls on thc bult.a6

V.S.'s parents trustecl ancl ad¡nired Mr. Monølvo, statecl V.S, He assisted with the

scholarship, he sometimes visitcd V.S.'s home, and he once cÍtme to the house to show V,S.'s

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

o022
soAH 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

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

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

hearing,

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

Mr. Montalvo wai giving her such massages up to 4 times per day.sa The abuse occurred at the

rniclclle school f,reld bouse, .the higb school weight tootil, aud at bís house.ss She stated she did

not tell her parents because they would not believe her,56 She also said that, if she did not kiss

Mr, Montalvo as he lequested, he would tqll her parents that slre was undetperforming in track,

ancl they would get mad at her,s?

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

stated in the interview:

And he was like uh,.,I've heard that your [sic] like really good and whatever. He

was like I know your ..,will you evsr havs sex rvith me? .A,nd I was like no coach

I will never do that rvith you, And he was like rvell I know your parents need

money and sttrff, I have money, I just rvent to the bank right now, I have--$2,000

with me. That's what he saicl íwas like no I'm not going tõ do that coach.s8

In the intewiew, V,S..described only one incidcnt of rape: the occunence in the field

house, Her clescription was largely consistent with that of her testimony at hearing, She stated

that Mr, Montalvo told her not to tell auyone or she woulcl lose her scholarship aud be "a

nobody." She also statecl that, afÌenvard, she asked an olcler friend to buy "plan B" for her.se

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

hot ¡rb, she statecl in the interview be massaged her. She said that, cvery other time she had been

to lvfr. Montalvo's house, his wife had been present, but this time she was not there, According

-

t stafi's Exhibit 4A a¡ 16.

tt ltl. ar l7-18.

36 Id.at77.

sj ld. at 19.

sì Id. at ll2.

!ç Tr. at 22-21 . Thc ALJ as.sunrcs that "pìarr B" is lhe brand nar¡re or colloqIial expt'essiort lor a "tttot'ningafìer" contraceplive.

MONTALVO V. SBEC

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

to V.S., he took her bla off, then put it back on, and he touched various private parts of her body

and engagcd ill oral sex. She said intetcourse did not occu¡.óo

When talking about the state track meet in Austin in May of her senior year, V,S, said

that Mr. Montalvo brought in each other girl 1o his hotel room to talk for about l5 minutes, but

t¡at he kept V,S. in there for 2 hours. She said that he made her hug ancl kiss him.Úl

In the interview, Stuclent I said the first person she told about these events was her

counselor at college. She told the counselor because of the emotional shain, she indicated.

Then, she said, she told her parents in February 2009,62

3. lestimony of llrasmo l\lontalvo

Mr. Montalvo began working as a teacher fi 1992. At first, he was a "ltolcling teaoher"

r.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

0025
soAH 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

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

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

conlract said if a student clid anything that might embatrass the school, the student could lose the

scholarship.6e

As to being alone after practice with V,S. at the fìelct house,I\4r. Montalvo testified that

he dict not thínk that had ever happened. He said that he sometimes, but not frequcntly, had V'S,

or other girls stay after practice if they needed to work on something partioular. He said most of

the hamstring rub dowrs he administered occuned in the lield, and he could not recall u'hethcr

he ever rubbed her leg down in the field house, but he never rubbed her down alone in the field

house after "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.

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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

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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'

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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

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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.

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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.

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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,

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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.

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situation in an atternpt to correct it ps¡rhologically.l0a Also, N4r. N4ontah,o's popularity and

standing in the community do not meân that he was incapable of c.ornnritting sexual abuse,l0s

Ms, Garza-Louis saw no motivation fbr V.S. to make up these charges. She said that

some people may fabricate charges in orderto gain attention, but she sav/ no sign of that inthis

case. In fact, she noted, the attention V.S dial receive as a result of her accusations was negative.

in that she suffered rejection in the community'106

On cross-examination, Ms. Garza-l,ouis ackltowledged that there ale indications in the

materials she reviewed that V.S. is not considered a trustworthy person! and that she had lied in

the past in a manipulatit e mannçr.107

Rio Grande City CISD Teachers and Coaches

Rey RamireT, has þeen with the Rio Grande City CISD for 16 years, and is presently in

his sixth year as alhletic director for the rlistrict. He has served as a coaçh for 13 years,lo8

Aócording to Mr, Ramirez, while CISD coaches *. no* tolcl not to n¡b down students

ancl to let the trainers do it, no such policy existed in 2008.rot FIe testifiçd that the. coaches have

been told that if an athlete is injured, it is protocol that the trainer be contacted, so that the hainer

can refer the athlete to the doctor ot provide first aid'rl0

roa Tr. at 43 I 433.

tts Tr, at426.

l's Tr. ar 433-435.

ro7 Tr. at 439-4,10,442. The ALJ sur¡¡ises tbat the nlaterial to which lvls. Garza-Lottis refert'ed was, at

leasr in par1, V,S.'siestimony utrdet cross'examillation at the crin:inal trial'

ro8 Tì-. at 210-zJl.

'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.

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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,

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known since they were very young. People obeyed him.)19 However, she said Mr. Montalvo's

neth<¡d of stretching the legs of some female athletes ditl not look appropriate ('even though the

mechanics of the stretching rvere fìne). z\ssistant coaches nrentiolled it to lvlr. Montalvo. Sone

girls refused to be stretched by him, but the girls he had coached sirice they were very young

were comforlable with it'120 Ms' Pena also said that vh. Montalvo would slap girls "not on their

btrtt/burtt," bnt "in betr,veen the hip and the butt" or "ncar" the butt, in a ma¡rner that said "Go get

thern" or "Good luck, good job," He did this ',vhen the parents were present, but a coach from

another school once said it looked bad. Ms. Pena indicated that tlre propriety of this conduct was

something that people could have different opinions about.l2l

James Meguire is the head athletic trainel at Rio Grande City HS. He has held the

position since 1998, and is presently licensed by the Stale of Texas as a trainer,r22 His job is to

recognize, assess, treat, manage, rehabilitate, and recondition athletic injuries under the direction

of a licensed physician, Þle knows Mr, Montalvo, rvho started working for the district in the

early nineties. Mr. lvfeguire testified that Mr. Montalvo, although an educ.alor, is not a licensed

trainer and therefore cannot prâctice athletic training.tzl

Mr, Meguire testified that it has always been the Rio Grande City CISD's policy to repofi

injuries to the athletic trainer. He said that the coaches are supposed to talk to the parents. If the

trainer is uravailable ancl the parents want the child to be seen iurmediately, they can take the

child to the doctor, but the coache.s usually harre the children go to the trainer first for the

coordination of insurance papenvork, Parents can clecide to take the child to the doctor instead

of to the rrainet', take the child to Mexico f'or shots (which, Mr,lr{eguire said, is conrmon), ordo

nqthing at all. According to Mr, lvleguire, Mr. Montalvo is arvare of procedure.s and usually calls

the trainer when a snråent athlete gets hurt. If a student with an injury is not reported to the

I.re Tr. at 263-264.

f 2t Tr. at 264:26i,2'10,2'12. Ms. Pena said tbat, after about 2005, there were no student trainers to stretch

athietes, so lhey vrould ask thc coachçs to do it,

'2r fr, at 26'1-268,272-275.

"' Tr. at 284-285. Mr. Meguire also worked as a lrainer for the Rio Grande Ciry CISD from 1990 to 1991

ld, at 284.

ti! -lr. at286-258.

MONTALVO V. SBEC

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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

0038
so^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

0039
so/{H DocKET NO. 701-l l-8468.8C PROPOS,,\L FOR DECISION PAGE 3I

r\s to st¡etching, Ms. Lu said that she saw Mr, Montalvo stretch girls, which rvas not

inapplopliate, She heard no complaints about it.l36

Ms. Lu also saw Mr. Montalvo give girls rub dowrts, and saw no prob-lem with the

practice.l3T Ms, Lu further stated that she had seen Mr. Montalvo give V.S. rubdowns at the fìeltl

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

0041
soArr 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

0042
soAI{ DOCKET NO. 701-lI-84ó8.DC PROPOSAL F'OR DECISION PAGE 34

suicide. About 30 days later, Mr. Montalvo said that he wa.s still talking to V.S., who continued

to have problems, lvfr. l\ltahif told the school counselor about V.S. because, he said, thal is

protocol tvhen a student [a]ks about suicitle, although tlrere is no written rule to that ei'Tþct.lss ln

a written starement, lvfr. Altahif spoke highly of Mr. Montalvo as a poach and educator,l5ó

Roel Gonzalez is the Superintendcnt of the CISD. He testified that Mt. Montalvo lvas on

¡1vo'years of paid administrative leave pending his criminal l¡ial, and upon his acquittal u'as

reinstated as a reacher with the CISD. Mr. Gonzalez further stated that, if he heard that a tcachcr

had macle multiple phone calls to a student and allowed a studeni to use the Jacuzzi in the

teacher's own master bath, there would be cause to initiate an iuúbstigatiott; hov,'ever,

Mr. Oonzalezwent on to say that he would need to gather evidence and look at all the facts

before cleoiding to take any action. Specifically as to the phone calls, he stated that it would be

important to know what they were about, He^said.that not every mistake in teachJug is a matter

for punitive action, and sornetimes a teacher just needs to be counseled to do something better

the next time, Mr, Gonzalez said lhat it is protocol for an injured student athlete to be sent to the

trainer. He went on to say that, rvhile parents are part of the decision making team concerning

lvhether to go to the trainer, they are not the sole deciders.l5T

d. Rio Grnnde City HS Students and Parents

X.A. graduatecl fiom Rio Grande City HS in 2007 and went on to college at the

Unìversity of Texas at San Antonio. Mr, lvlontalvo was her coach tluouglrout her public school

career, starting in the first grade. He is also her godt'ather; she asked hirn to become her

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

0043
soAH 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

0044
soAH DocKET NO. 701-n-8468.8C PROPOSÀL FOR DECISION PÀGE 36

K.A, testifìed that, in the spring of 2009 (the year follorving graduation), V,S. was very

troubled. had a boyfriend of whom her parents disapproved, and posted on Facebook that she

\vas pregtant. V.S. did not lrave a child lronr the pregnancy she claimcd ât that time.l6a

According to K.A.'s l ritten statement, Mr. Montalvo is a ciuing, inspiring, gerrerous, arrd

trustworlhy coacb,165

Dína Peua líves in Rio Grande City, in tlre neighborhoocl where Mr. Montalvo lives,

Ms. Penp regards Mr, Montalvo as a f iend, and he coached her two daughters in tmck, 'One of

her <laughters, E,P., was a teammate an<l ôlassrnate of V.S.l66 lvls. Pena statpd that she harl been

acquainted with V-S. and her parents since V,S. ancl E,P. had participated in summer t¡ack in

elemeutary school,t6T According to Ms, Pena, V.S. was not a very truthful p"tson,tut In a

wdtten statemeût, Ms. Pena said fhat Mr. Montalvo is a mentor to her riaughters and has their

wholehearted trust.l6e

.E P. graduated from Rio Grancle City HS in 200S and has since graduated frotn the

University of Texas at Austiu. She ran track in high school, and Mr. Montalvo has been her

coach since she was in sevenilr grade. She stated that she has known V,S. since they were in

elementary school, and knows her fairly well. They used to be friends, stated 8,P., bul the¡rhave

had a fàlling out.lTo

tG 'lr. at460462.

rt'r Respondent's Exhibit 6.

roé Tr. at 4E6-488.

16? Tr. at 488. V.S. actually began sutruner track i¡ middle school

lól Tr. at 489.

r6e Respon<lenl's Exhíbit 12.

'"n Tr. at 51t-535.

MONTALVO V. SBEC

0045
soAH DOCKET NO. 701-ll-3468.8C PROPOSAL NOR DECISION PAGE 3?

\\¡hen asked about V,S,'s reputation for truthfulness, E,P. replied that V,S. "lies

oonsistently."lTl E.P. also statecl that \¡.S, had askecl her t9 lie for her.l72 In a wriLl.en statenrcnt,

IJ.P. saicl abor¡t V.S, that she "is a manipulative person and com¡rulsive liar,"l73

Concerning phone calls with Mr, Montalvo, E.P. stated that, as a freshtnan, she talked

with him on the phone about three times per week, As she grew more confident in:her athletics,

she spoke wilh him less, she said, but ar<¡un<l importaut competitions she had lengthy

conversations of n:orc than an houi r,vith him.'74 She said, "He latked to all of us on the phone

late at night."l75

Il.P. said that if V.S. was injured, there was no cloubt in E.P.'s mind that Mr. lVlontalvo

would tell V,S. to go to the trainer. Further, agreed E.P., Mr. Montalvo would not tolerate a

refusal to go to the frainer.tT6

E.P. sometimes saw Mr, Montalvo massage V,S. during practice. Also, said E.P.,

sometinres V.S, rvould be arou¡tcl after practice,lTT

With respect to stretching, E.P. testified that lvlr, Montalvo stretched her by having her

place her back against a wall, immediately adjacent to a cloorway, and he woulcl move her leg up,

past her bocly, and into the ofen doorrvay, She stated that she was very tlexible. ærd no one else

was strong enough to stretch hcr adequately. She further saicl her mother was sometimes present

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

0048
soAH DocKET NO, 701-ll-8468.8C PROPOSAL F'OR DECISION PAGE {O

K,T. is a stuclent at the Universify of Texas at Kingsville, where she runs track. K,T' has

known Mr. Montalvo ibr six years, starting with b.is being her coach in summer track, then ber

high .school coach. She graduated f¡om Rio Graqde City HS in 2010 and was â teammate of V.S.

for t*,o years, K.T. said that she and V,S. we¡e close friencls in K,T.'s sophotnore yeat'te?

K,T. testified that V,S. was "clingy" with lr4r. N4ontalvo, and her belravior toward him did

trot change duri¡g the time K.T. was arou¡d them, iucluding the spring and sttmrner of 2008.re8

K.T. said that, at the time of the Mission track meet in the spring of 2009, V.S, came and wanted

to ride with the team o¡r the bus, but could not because she was not part of the school, At the

meet, saicl K.T., V.S. v,as jumping on Mr. Montalvo's back.l99

K.T. rec¿¡lled the state meet of 2008in Austin, forwhjch she was the only Rio Grancle

City female. track athlete to qualify. She said that V,S. ancl E,L, went along, too, because lhey

were the athletes who had worked hardest at practice that year. According to K'T',

lr4r. Montalvo calle<l each girl in, one by one, to his room tbr a talk. He told K.T' what she had

lo do and not to be netîous. He gave her a necklace that his sister had made, and a big hug,'like

a father rvould give. She said there was nothing inappropriate about the interaction. She

esrimated she was with hjriLfor about 30 minutes, and it <lid not seem to her that the other gills

were with him lbr any longer.2oo

When asked about her opinion concerning whether V.S. is a truthful person, K.T. replied,

',I horrestly thi¡k that she rvould do anything to get what she wants." Referring to lying, K.'I.

said V.S. "kno\ils that she can get away rvith it with her parents and anybody else."20l

re? Tr. at 668-669. Coach Lu testit-red that K.T. and \¡.S. dicl nor ahvays like each other. li. at 5l l-532.

Àccording {o K.T., she had a falling out with V,S. afle¡ a traffic accidenl Ín rvhich V,S. was a driver rurd K'T. was

hcr passci-e"r. f.i'. res¡tÌe¿ rhat V-,S. inappropriately tried to place all the blame on the driver of anotlrer car, ætd

¡¡cn V.S.'s* mothcr urgecl them lo sue for no reason. K.' - said thís incident pusbed her away fì'om V.S' and V'S.'s

fanrily. 'fr. aI 6'76-677.

ie6 'lr. at ó70.

'ee Tr. at 6'10-6't l.

2(Ã Tr. al 67 -1-676,680-652.

?ot Tr.at67iMONTALVO V. SBEC

0049
soAH DOCKET NO. 701-l l-8468.8C PIìOPOSAL FOR DBCISION PAGE 4I

K.T. was at the Donna meet, near V.S., when V.S, injured her hamstring. K.T' stated that

the coaches told V,S, to go to the trainer, and she went'202

I(.S. is a student in high school and the daughter of Ricar<io Saenz, auo(he¡ witncss in this

case. K.S, has been coached by Mr. Montalvo in srtmnre¡: track and high school. She said that

she knows V,S. from sulnmer track in years past, but they \ryere never high school track

teanmates. K.S. state.d that, when she was in niddle school, she worked out with tlre high

school athletes, and she .saw V.S. around Mr. lvfontalvo in 2008, including that summer. K.S.

said that V.S. r'vas outspoken and friendly with lr4r- N4ontalvo'2o3

As to V,S.'s reputation for truthfulness, K.S, stated that she always heard people saying

that V,S. was not avery truthful person'2oa

In a written statement, K.S. said, "I have attended many tmck meets all around the United

States under [vlr. lvlontalvo's] care and not once has he disrespected me in any way.,,I believe

Coach Montalvo is a good and decent.man who is genuinely respectful and profèssional rvith his

athletes."2o5

A.B, is a l/-year-old student who was coaohed by Mr. Montalvo for about otre year in

high school, A.B saicl that she is acquainted with V.S., having met her a couple of times during

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

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attention and distract him rvhile he rvas trying to coach the track team."208 Further, said 4,8,, at

the 2009 Mission track meet, V.S. wanted to ride on tjre bus, but Mr. Montalvo lold her she

could r¡ot. A.B. stated that, at that meet, V.S. "would try to get [Mr, Montalvo's] attention while

he was coaching me <Iuring my jumping events," and V.S. was trying to hug Mr. lvfontalvo,2oe

A.B, ,said that Mr. Montalvo was never inappropriate with team members or V.S., did not

slap girls on the backside, and was a good coach.2to In a written statement, she saitl, "While

being coached by Mr. Erasmo Monlalvo in 2008 through 2009 ho has shown nothing but total

respect torvards me.. . and my Leam mates,"2ll

6, Other Evidencc

In eviclence are copies of several greeting cards Mr. Montalvo sent to V.S. On the cards,

Mr. Montalvo wrote notes repeatedly exhorting V,S. to work hard, stay çlose to her parents,

follow her tlreams, ancl remain focused.2lz

Atso in evidence is a DVD recording, as well as a transcript, of the local television

interview with Mr. Montalvo and V.S. about her scholarship.2i3 In the interview, V.S. appears

happy and excited, and seelns cor¡f'oflable in Mr. Montalvo's presence.

Police recorcls associatecl with the investigation of sexual. assault ale in evidence,2'4 In

addition, Stal'f iutroduced a staternerrt by the Stâte's Advisor.v Iloard of Athletic'l'rainers about

2oa Tr. aL 721 .

too Tt. ut 721-723.

)to Tr. at 723.

2lr Responden¡'s Exhibít 8.

tt' Sta¡¡ s Erhibit -5. V.S. testifiecl that Mr. Montalvo gave bilthcla,v ancl Valcntine's cârds 10 all the gít'ls

on the team, Tr'. at 44-45.

2rx Respondent's llxhibits 23 and24.

2ra Respondeni's Dxhibits 21, 25-27,

MONTALVO V. SBEC

0051
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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-

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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.

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lying. Ms, Dina Pena said v.s. is not a very truthful person. K,s. and A.B, stated that V.s, had

a reputation for lack of l.:'uthftrlness.

Staff invites the ALJ and the Board to dismiss this notable body of testimony as coming

fìom persons who ^'would naturally be biased in favor of their beloved coach."2l8 This clairn has

no basis in the recorcl,2le On the contrary, the testimony of a nu¡nber of the young athletes

indicates that any "bias" on their part arose out of their direct experiences rvith a coach who

treated them with re.spest and with a young l¡i/onan who lied and asked some of them to lie for

her. The chorus of voices casting doubt on V.S,'s credibility wâs colroborated by V.S.'s own

aclmissions tbat she has lied about important matters, falsely telling the police that she was

kiclnapped and falsely telling family and friencls that she rvas pregnant, on both occasions to

manipulate, and to gain attention and syrnpathy, from someone in her personal life,

'Ihere is no similar evidence generally calling into question Mr. Montalvo's veracity,

r\ny inconsistenoies in hù testirnonlto do not rise to the level of casting overall doubt on his

credibility.

2. Sexual Impropriefy and Åssault

Staff alleges; and \¡.S. testified, that Mr. Montalvo touched her inappropriately on

rnultiple bccasions, sexually penetrating her on at least one occasion,

V,S. tells a plausible story. Her assertions - that Mr. Montalvo massaged her frequently

and in private, that his massages gradually became sexual, that he used his position of authority

and trust to gain power over her alrd her family, and that he actu,ally raped her - certainly could

be true. lvfs, Garza-Louis charactedzed V.S.'s accoLmt as believable, noting that these events, as

2t* Petitioner's Response to ResponrJent's Closing Argument at I'

tln ltr the sante pal'agraph. Staff groundlossly speculatcs that the jury that noquitted Mr. Mt¡nlalvo was

biased. Itl.

t2o Fo¡ exaurple. Mr. lvlolrtalvo ntade varvirrg slatenents about rvhether he told V.S. to go to the trainer

(despite what Mr. Montalvo chalactel iiæd as Mr. Sancllez's refusal to allow he.r to go).

MONTALVO V. SBEC

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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

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patterns in sexual abuse situations; she \\as not shown to be an expert in general credibilit-v or

sorting out disputed fncts. She has no direct knowledge of the events at issue. She has met none

of the persons involved, Sbe watched the DVD of V.S.'s interview at the Child Aclvocacy

Center, but Ms. Garza-Louis did not listen to any of the testimony in this case. She did not hear

V.S. or Mr. Montalvo testify. There is nothing in the recorcl to indicate that she is farnilia¡ with

Mr. Montalvois detailed version of events, She clicl not hear the testimony of any of the many

withesses who raised serious concerns about V,S''s dishonesty'

The most direct corroboratiye eviclence of V,S.'s accusations of sexual abuse came from

V.S.'s mother. Ms. Sa¡chez testified that V,S. was upset ancl crying upon retumirrg from

Mr. Montalvó's Jaouzzi oue day. She fulther testified that V.S. \Ã,as vety late coming home one

night, and, when Ms. Sanchez called Mr. Montalvo, she could hear V,S, crying ín the

background. Ms. Sanchez also testified that V.S. did not want Mr, Montalvo to accompany the

fagrily to Corpus Christi to talk to college personnel about the terms of the scholarship. This

testimony tends to sorroborate V.S.'s accusations. On the occasions when V.S' was crying,

Ms, Sanchez was tolcl that it was because V.S. rvas upset about her injwy. This is certainly a

possible explanation for her tears on the late-night occasion. It seems less plausible affer the :

Jacuzz.í visit, as Mr, Montalvo testjtìed that V,S,'s leg felt better afler using the Jacuzzl

Howevor, the ALJ has concerns about the accuracy of Ms, Sancbez's recollections. Ms. Sanchez

testifred that she had no menÌory of a dramatic event described by bottr V.S, arrd her father, in

which V.S. told ber mother in the summer of 2008 that Mr. Montalvo had touched her, and

Ms. Sanchez called her husband home, rvheteupon he got out a gun to use against Mr. Montalvo.

Ms, Sanchez's corïoborative teslimony, theref'ore, r.vhile troubling, does not add enortgh to

Staff s evidence to meet its burden of proof on the allegations of sexual abttse.

No wítness corroborated V.S.'s statement that she received multiple daily massages from

Mr. Montalvo. No one claimed to, rrpon leaving school, notice V.S. and Mr. Montalvo lìnget'ing

alone togetfier after practices. No teammate agreed rvith V.S. tbat Mr. Molrtalvo kept her alone

with him in the hotel loom at the ,statc meet for more than thc shon time everyone else was rvith

him. There is no physical evidence of sexual oontact in lhis case, äs cxists in some rape or

sexual aþuse cases. Mr. Montalvo aclnlitted to giving V.S, occasional ricles ho¡ne altcr track

MONTALVO V. SBEC

0056
soÀH DocKET NO. ?01-l1,8468.8C PROPOSAL FOR DECISION PÄGE 48

meets, but there were only seven track meets after the alleged abuse started, and V.S. saicl that

the inappropriate touching occunecl 50 or more tirnes.222 Conflictirrg evidence about whether

lr4r. Montalvo slapped girls on the backside cloes not makc it more likely that he sexually abusecl

V,S. Nor does eviclence that some people did not like the look of his stretqhing the athletes,

That Mr. Montalvo rubbed down athletes also proves nothing, aspecially given that, at the time,

the district had no policy against it, 'Ihe ALJ cannot see any connection between V,S.'s

allegations of scxual misråahrent ancl Mr.lvfonlalvo's giving hjs athtetes greoting cards with

inspilational messages and costume jewelry rnade by his sister. Mr, Montah'o's poor judgtnent

in allowing athletes to use the Jacuzzi in his master bath does not establish that he assaulted V,S.

when she lvas in his horne.

For the above reasons, lhis lecord does not support a finding that Mr. lvlontalvo touchäd

Sfudent I inappropriately, engaged in romantic or sexual conduct with her, or physiÖally

misl¡eated or abuse.cl her in violation of Code of Ethics Standards 3,2,3.5, and 3,6,

3. Telling V.S, Not to Go to the Traincr

It is undisputed that V.S. did not see the lrainer for her hamstring injury, It is also

undisputed that district protocol rcquired injured students be referred to the trainer, Staf[.alleges

tbat i\4r.lrlontalvo told V.S. that if she infornred the athletic. trainer sbe was injurecl. the lrainer

would not let her run in the district and regional track tneets. This is the only allegation in the

pleading concerning the trainer. While, sulely, a coach's making such a factual àssertion could

not by itself be a sanctionable everrt, StafÏ--s allegation implies that lvlr. lr4ontalvo actually

prohibited V,S. fiom sceing thc trainer or urged her not to go. The ALJ interprets the plcading to

mean that N4r. Montalvo actively discoulaged V.S. from going t<l the trainer,

Staff s main assertion seems to be lhat Mr. Montalvo was dominating V.S. a:rd grooming

her for sexual abuse by contlolling her rehabilitation, placing himself in the caretaker role, atcl

providing himself rvifh a rcady cxcusc to cngagc in physical contact with V,S. As <liscnssed

ttt lt js tìot even clear to rhe ALJ that V.S. as.rerted arrylhing impropcrhappcned on thc ridcs honle. Whcn

aske,:l 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

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so,{H DocKET NO. 701-il-8468,8C PROPOSAL FOR DECISION PAGE 49

above, there is insufficient evidence in the record to support the allegatious of sexual abuse.

However, Stafï also seems to argue that plohibiting or discoulaging V,S, from going to the

trainer, cven without any scxual overtone.\, harmed her by clenying her the proper treatnrent for

her injury. Aside from grooming for sexual abuse, there was another l'eason rvhy a coach would

not want a trainer to require V.S, to sit out flom the district meet. V.S, wäs a star athlete,. ald the

team neecled V.S, to compete in 2008 in order to win the district charàpionship.223 If

Mr. Montalvo prevented V.S, from seeing the trainer for her injury, he may have violated

Standard 3.2,by knowingly treating a student in a rnanner that advetsely affccted the student's

learning, physical health, mental health, or safety. Or, Mr. lvlontalvo miglrt have violated

Standard 3,5, by intentionally, knowingly, or recklessly engagirrg in neglect of a student or

minor,

V.S. testified that Mr. Monølvo told thern the trainer rnight keep V.S. fiom participating

in the di.strict meet, and her failure to run could jeôpardize hcr scholarship. FIer palents bolh

echoe.d that testimony, V.S, and her father testified that V.S.'s mother took her to Mexico for

shots. Mr. Sanchez said the shots were Mr. Montalvo's idea. V,S. said she never saw a doc-tor

for her injury, ln contrast, lt4r. I\4ontalvo repeatedly testified that he told V.S,'s farnily he would

prefer that she go to the trainer, but that Mr. Sanchez adamantly said he would "take care of it,"

and woulcl take V,S. to a doctor. According to Mr.Ivlontalvo, V.S. and het parents refused to

involve the trainer. IIe varyingly said that he tolcl V.S. to go to the trainer, that he did not do so

bnt should have, and that he coulcl nol recall what he told her.224 Mr.lvfontalvo sajd be rvas

under the irnpression that V,S, was seeing a doctor in lvlexico.

This js a diffic,ult faotual issue, as there is potentially persuasive evidence on both sides.

V.S. and her palents ail testified ihat tr¿r. lvlontalvo did not want V.S. to go to the trainer, telling

them that her scholarship might be laken arvay. Their vcrsions of events \ryere consistent.

However, as tlisctnsetl above, there are concerns about the accuracy and credibility of the

testimony of V.S. ancl her mother. Further, the AL.J is unpersuacled by V,S,'s ancl her parents'

"t Tr', at 4og.

""' Mr'. Montalvo's lestimony lhat hc dicl not send V.S. to thc trainer but should have scnt done so could

rnean, as his argurnenI sußgcsts, that he.should hat,e insisled sbe see the trainer, despite her family's refitsal. See

Respondent's Post-Heuring Rr:ply Brielat 7.

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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

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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

0060
soAH DocKET NO. 70r-r f -8468,8C PROPOSÄL FOR DECISION PAGE 52

physical or mental health, constituted mistreatnrent or neglect, or by themselves amounted to

solicitation or engagenrent in a sexual or romantic relationship. Nor would such remeu'ks, by

thetnselves, have indicated that Mr. Mont¡lvo is rmworthy to instruct or supervise youth. It

would have been wise for M¡. I\,fontalvo to have referred V.S, to a counselor instead of trying to

addrcss her needs himself, but that is a different rnatter, and one not pled in this case.

Mr. Montalvo's telephone calls u,ith V.S, did not violate the cited Code of Ethics provisions and

should not subject him to sanction.

5. Student Use of Mr.lVlontalvo's Jacuzzi

It is undisputed tbat Mr. Montalvo allowed students, including V.S,, to use his Jacuzzi,

\\¡hile there is insuffiçient evidence to suppoÍ a determination that Mr. Montalvo sexuall¡r

assaulted V.S. while she was in his home to use the Jacuzzi, lr4¡- Montalvo unquestionably

exetcised bad judgment in opening his master bath to silrdents, ancl especially to one female

student alone - even if Mr. Montalvo's wife was at home at the time, Ftrowever, such a poor

decision did not violate the cited Code of Ethics provisions by aclversely affecting students,

rnistreating or neglecting thern, or constituting solicitation or engagenent in a sexual or romantic

relationship, Nor did this qnestionable decision, by itself mean that Mr. Mo¡rtalvo is unrvorthy

to instruct or supervise youth.

6. Summary and Recommendation

Staff has not ptoven its allegations by a preponderance of the evidence. Theref'ore, the

ALJ recomn:encts no sanction in this case.

III. FINDINGS OF'F'ACT

Erasmo lvlontalvo, J¡., holds a Texas Educator Certificate issued by the State Board for

Educator Certification (SBEC). The cemificate \l'as in frrll f'orce and et'l'ect at all tirnes

nraterial and relevant to this action.

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

0061
J.,.

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

0063
32.

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 a jury 1rial.

IV, CONCLUSIONS OIT LAW

1 . SBEC has .iurisdiction over this matter. Tex. Educ. Code $21 .03 I .

2, SOAH has jr.risdiction over the hearing in this proceeding, including the authority to

issue a proposal for decision with proposed fìndings of fast and conolusions of law, Tex.

Gov'l Code ch. 2003.

Proper ancl timely notice of the hearing was provided. to Mr. Montalvo. Tex, Gov't Code

ch.2001.

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 F
Page I

|" LexisNexis"

I of 2 DOCUMENTS

TEXAS ADMINISTRATIVE CODE

t;r,:r, N{CHIVE DATA *t"r'

* * {. THIS DOCUMENT REFLECTS ALL RULES IN EFFECT AS OF'DECEMBER 3 I,

2008:lt¡l'¡F

TITLE 19. EDUCATION

PART 7. STATE BOARD FOR EDUCATOR CERTIFICATION

CHAPTE R 24g . DI SCIPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED

CASES

SUBCHAPTER A. GENERAL PROVISIONS

lerAC 924e.3 (2008)

ç 249.3. Definitions

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 certificate); 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 adjudicative 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 authority.

(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 opportunity 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, regulationì, -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: disï'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 educator's certificate.

(37) Respondent--the party who contests factual or legal issues or both raised in a petition; 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 

. 

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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,

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Bø it o¡øleil, Ùy lhø Lcghlohtre of lha Btoto of Tcnast

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

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ä;.i,; Ë *iizponilotl nnd tl¡nt.thia I

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Ännt'ovod l\fnrah 30, 1011' 

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CASE NO. 03- 1 3-00370-CV

IN TFIE COURT OF APPEALS

FOR TFIE THIRD DISTRICT OF TEXAS AT AUSTIN

STATE BOARD FOR EDUCATOR CERTIFICATION ANd

MICHAEL BERRY, THE ACTING CHIEF EXECUTIVE OFFICER OF

THE STATE BOARD FOR EDUCATOR CERTIFICATION, IN HIS OFFICIAL

CAPACITY ONLY,

Appellant,

V

ERASMO MONTALVO,

Appellee.

On Appeal from the 200ü Judicial District Court of Travis County, Texas; Cause

No. D-1-GN-12-002991; Before the Honorable Tim sulak

APPELLANTS' BRIEF

APPENDIX H
REVISED

CIVIL STATI,]TES

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

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@ coi¡?ANY

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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 '

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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 I
Flled 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 J
Page I

Ü LexisNexis'

1 of 4 DOCUMENTS

TEXAS ADMINISTRATIVE CODE

{,*:r, ARCHIVE DATA t*¡r.

I''.'I, THIS DOCUMENT REFLECTS ALL RULES IN EFFECT AS OF DECEMBER 31,

2008 *t:r.

TITLE 19. EDUCATION

PART 7. STATE BOARD FOR EDUCATOR CERTIFICATION

CHAPTER 249. DISCIPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED

CASES

SUBCHAPTER A. GENERAL PROVISIONS

IgTAC 9249.s (2008)

5 249.5. Purpose

The purpose of this chaPter is:

(1) to protect the safety and welfare of Texas schoolchildren and school personnel;

(2) to ensure educators and applicants are morally f,rt and worthy to instruct or to supervise 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