TEAGUE, Judge, concurring only in the result.

I agree with the holding in the majority opinion that the Dallas Court of Appeals, see Cates v. State, 748 S.W.2d 9 (Tex.App.-5th 1987), erred in sustaining the trial judge's decision to admit into evidence statements that William Curtis Cates, henceforth appellant, made to Joanna Vatsis, henceforth Vatsis, a caseworker employed by the Texas Department of Human Resources, henceforth TDHR. Therefore, I concur.

I also concur because I find that although the majority opinion does not expressly overrule this Court's majority opinion of Paez v. State, 681 S.W.2d 34 (Tex.Cr.App. 1984), it has sufficiently damaged what was stated and held in Paez to the extent that Paez is no longer valid precedent in this area of our law.

The primary reason that I do not join the majority opinion lies in the fact that it fails to expressly hold, in big bold print, for all the world to see, that when caseworkers for TDHR and "professionals," such as school teachers, who investigate a complaint against a natural parent, the lawful guardian, or the lawful custodian of a child for committing child abuse or child neglect, they are then acting as the functional equivalent of certified peace officers, and should be held to the same standards that certified peace officers must adhere to when they interview a "suspect" to a crime. At least this kind of express holding would give caseworkers and professionals such as school teachers, nurses, doctors, and day-care employees, and other individuals, guidance and a sufficient bright line rule I believe that they could live with, and would also give our courts a rule that can easily be used in deciding whether statements by the "accused" to caseworkers or professionals, and other government employees who are not primarily charged with enforcement of the criminal laws of this State, are admissible or inadmissible evidence at the accused's trial. However, has the majority opinion, albeit implicitly, not actually approved the rule that I advocate should be adopted in this area of the law?

The majority opinion leads me to conclude that after today, notwithstanding the provisions of Chapter 34 of the Family Code, if a caseworker for TDHR or a professional, such as a school teacher, is somehow made aware that a natural parent, lawful guardian, or lawful custodian of a child is suspected of committing child abuse or child neglect, unless the caseworker or the professional is willing to assume the position of a certified gun carrying, badge wearing peace officer, and is further willing to perform like a "real life" police officer must perform when interviewing a "suspect" to a crime, that individual is "off-limits" to the caseworker or the professional. In other words, if the caseworker or the professional at that time is acting as the functional equivalent of a certified peace officer, he or she must perform just like a certified peace officer must perform under those circumstances. But, if the caseworker adheres to what the majority opinion states and holds, he or she will not be doing the job for which he or she was employed to do, pursuant to Chapter 34 of the Family Code. And there lies the dilemma for the caseworker.

I was under the impression, as Justices Stephens, Stewart, and Baker of the Dallas Court of Appeals apparently also were when they voted to approve the opinion of the Dallas Court of Appeals in Cates v. State, 748 S.W.2d 9 (Tex.App.-5th 1987), also see Davis v. State, 687 S.W.2d 78 (Tex.App.-5th 1985) (Appellant's p.d.r. refused, see Davis v. State, Tex.Cr.App. P.D.R. No. 0736-87, December 3, 1985), that this Court's decision of Paez was the final word when it comes to making the determination whether an accused's statement to a caseworker for TDHR was admissible or inadmissible evidence.

In Paez, this Court expressly held that as long as a case worker for TDHR, although an employee and an agent of the State, does not act as "an agent of law enforcement pursuant to a police practice," (emphasis supplied), any statement that the caseworker obtains from one of his or her "clients," who might be a suspect as a result of the caseworker's investigation in a child abuse or child neglect case, is not the subject of custodial interrogation. Paez also holds that this is true even when the caseworker gives the "client" the "Miranda" warnings, and even when the "client" is then actually under arrest by the police and in custody for committing an offense that is not related either to child abuse or child neglect. In Paez, when the defendant made her statement to the TDHR caseworker, she was then in the custody of two uniformed policewomen in a room at a hospital, which was the functional equivalent of a regular jail cell, where she was then being held for the gunshot wounds that she had inflicted on her husband, who died as a result of the wounds she inflicted. She was then also being treated for gunshot wounds that her husband had inflicted on her. This Court ruled her statements to the caseworker were admissible evidence.

Paez distinguished McCroy v. State, 643 S.W.2d 725 (Tex.Cr.App. 1982), upon which the majority opinion in this cause principally relies. McCroy ruled that a statement that a psychiatrist obtained from a defendant was inadmissible evidence because the evidence showed "a plan on the part of the police to use Dr. Holbrook [the pyschiatrist] as a police instrumentality in the interrogation of McCroy [the defendant] so that the statements made to Dr. Holbrook were as though made to the police themselves."

In this cause, the Court of Appeals correctly discerned the following: "A state employee must be acting as an agent of law enforcement pursuant to a police practice before the safeguards attendant to custodial interrogation come into play. Only under these circumstances do non-law enforcement personnel become agents of the State for purposes of distinguishing custodial interrogation from non-custodial interrogation." (First emphasis supplied; second in original opinion.)

In Paez, the caseworker, aware that her "client," the defendant, was in police custody for allegedly killing her husband, went to a hospital, where the defendant was then under formal arrest, to see the defendant, apparently to determine whether the defendant's young children, who were not identified in the opinion as to age or sex, were being taken care of. The opinion in Paez also does not expressly or implicitly reflect or indicate why the defendant and her husband had been the caseworker's "clients" in the past, or why the caseworker was concerned about the well-being and location of the defendant's children. As to the former, it appears that the caseworker went there because of either child abuse or child neglect that had occurred in the past. As to the latter, the opinion does not either expressly or implicitly reflect or indicate just exactly where the children were then located, or whether they were then being taken care of by friends or relatives of the family. The caseworker, however, was not acting in the form of a "police agent," nor was she part of any plan on the part of the police when she went to interview the defendant. The defendant's statements to the caseworker were ruled admissible evidence by this Court.

Thus, under Paez, whether or not a defendant's statement to a caseworker for TDHR is admissible evidence is determined on the basis of whether the caseworker is part of a plan by the legitimate police officials to use the caseworker to obtain incriminating statements from the accused. If such finding is supported by the evidence, the statement is inadmissible evidence; if not, it then becomes admissible evidence. But, does today's majority opinion comport with these holdings?

Under Paez, factors such as TDHR caseworkers are not trained or qualified to be police officers, are not certified to be police officers, do not wear a certified police officer's badge, gun, or the usual police officer's trappings, but usually conduct themselves much like bona fide police officers might act when it comes to their investigating cases involving child abuse or child neglect, even to the extent that they give the "client" the "Miranda" warnings, do not control in making the determination whether a defendant's statement to a caseworker is admissible evidence. Under Paez, it is only when the caseworker is "acting as an agent of law enforcement pursuant to a police practice before the safeguards attendant to custodial interrogation come into play. Only under those circumstances do non-law enforcement personnel become agents of the State for purposes of distinguishing custodial interrogation from noncustodial interrogation." Thus, under Paez, even if the caseworker looks, walks, and talks like a "real life" police officer, unless the caseworker is then acting on behalf of a legitimate police agency when he or she interviews the "client," for purposes of "custodial interrogation," the caseworker is not a police officer or the functional equivalent of a police officer, but is then only a social worker, and any statements obtained from the "client" become admissible evidence in the trial of the defendant, no matter what offense he is charged with committing, or where he might be situated when the statements were obtained.

In this instance, it is undisputed that Vatsis, the TDHR caseworker, was not a "police officer," but was simply a TDHR caseworker doing the job that she was assigned to do by TDHR, that is, investigating a case that indicated that appellant may have unlawfully inflicted serious bodily injury on his natural child. Vatsis unequivocally testified that when she spoke with appellant she was not acting as a police officer and was not acting on behalf of some legitimate police agency, but was only acting as a social worker doing investigative work for use in a possible civil court proceedings involving the parent-child relationship. Under the holding in Paez, why aren't the statements Vatsis obtained from appellant admissible evidence?

The facts of this cause show that Vatsis became involved when someone notified TDHR that a caseworker should investigate the condition of the alleged victim, who was appellant's natural child, which Vatsis did by going to the residence where the child was located. Soon thereafter, Vatsis, with the child, who then appeared to have been seriously injured, and the child's mother drove, not to a hospital, but to Vatsis' office. Appellant was to follow them to the office. However, he did not show up at Vatsis' office. By the time the child arrived at Vatsis' office, the child was in extreme pain. An ambulance was summoned and the child was transported to a hospital for treatment. Legitimate police were notified and police officers soon arrived at the hospital, after which appellant was arrested, but at another location, for allegedly committing the offense of unlawfully causing injury to a child. Vatsis informed the mother that a representative of TDHR would be filing a civil suit in order to gain lawful custody of the child, which lawsuit was subsequently filed.

Thereafter, Vatsis visited appellant in the Dallas County Jail. Appellant was then incarcerated on the injury to a child charge. Vatsis testified that her purpose in going to the jail to visit with appellant was to interview appellant and obtain as much information as she could about what had happened to the child so that she could prepare for a possible civil suit that might terminate, either temporarily or permanently, appellant's right to have custody of the child, and, if custody was terminated, to make decisions on what conditions, if any, might be placed on appellant's later visiting with his child.

Vatsis' testimony makes it clear to me that she was not at the jail for law enforcement purposes; that she was not there acting as a bona fide law enforcement official; and that she was not there at the request of any legitimate law enforcement officer. Under Paez, why aren't the incriminating statements Vatsis obtained from appellant admissible evidence?

During the interview that Vatsis had with appellant, he made very damaging and incriminating statements to Vatsis, who did not give him the "Miranda" warnings but told him that he did not have to talk with her about how the child's injuries had occurred or had been inflicted. Although Vatsis told appellant that he did not have to talk with her, when appellant expressed a desire to keep his family together, Vatsis told him that was commendable but that it would be harder for her to help him if he did not talk to her. Appellant thereafter agreed to be interviewed by Vatsis. Vatsis asked appellant to explain the pending criminal charge against him, after which appellant made the incriminating admissions to Vatsis.

The court of appeals concluded from Vatsis' testimony that Vatsis "was not acting as an agent of law enforcement during her conversation with appellant; therefore, appellant's admissions to [Vatsis] did not stem from custodial interrogation. Consequently, there was no need for the requirements of article 38.22 or Miranda to be met prior to admission of her testimony. See Paez, 681 S.W.2d at 38." The record clearly supports this conclusion, and under Paez the statements should have been admissible evidence.

This Court's majority opinion, however, concludes from Vatsis' testimony that Vatsis was "operating as an agent of law enforcement in the State of Texas" when she obtained appellant's statements. This conclusion flows from the majority's following reasons: (1) when Vatsis interviewed and spoke with appellant when he was in jail, appellant was then the "central figure in a criminal investigation concerning child abuse"; (2) appellant "had been arrested for the present offense"; (3) appellant "was in the Dallas County Jail at the time of the interview"; (4) appellant's arrest had resulted from information provided by [Vatsis] as well as police interviews of the child and the examining medical doctor"; (5) "the questions propounded [by Vatsis] to [appellant] were calculated to evoke incriminating responses relevant to the pending charges"; (6) "[Vatsis] was conducting a criminal investigation and officially operating to assist those police agencies responsible for enforcing the State's criminal laws"; (7) "[Vatsis], after interviewing appellant,] immediately reported [appellant's] statements to the authorities"; and (8) "[Vatsis' self-serving declarations, namely, that she was not a law enforcement officer and that she was not a member of the law enforcement community] are totally insufficient to provide us with a basis for a decision [that she was not 'acting as an agent of law enforcement pursuant to a police practice before the sageguards attendant to custodial interrogation come into play']."

I ask: Isn't this the same type of reasoning that the Fort Worth Court of Appeals used in its unpublished opinion of Paez, see Paez v. State, Tex.App.-2nd, No. 2-83-263-CR, November 9, 1983), when it ruled that statements that the defendant in that cause made to the TDHR caseworker were inadmissible evidence because they were the result of "custodial interrogation?" But, didn't this Court reject that kind of reasoning in its decision of Paez, when it reversed the judgment of the Fort Worth Court of Appeals?

Also, isn't this the same kind of reasoning that the Dallas Court of Appeals used in Davis to reject the same kind of complaint appellant makes in this cause? In Davis, the child was taken to Parkland Memorial Hospital by the defendant and others. Examination revealed that the child was suffering from severe malnutrition, due to child abuse, child neglect, or injury to the child by the defendant, which caused the treating physicians to contact Dallas County Child Welfare so that it could investigate possible civil or criminal violations of the law. A TDHR caseworker commenced investigation and interviewed the defendant, who was then certainly in an "accusatory" stage of the process. As in this cause, the caseworker testified that the reason she conducted the interview was to assist her in her investigation whether or not to initiate civil proceedings to remove the victim from the defendant's custody, and was not done for criminal law purposes. The court of appeals concluded: "On the basis of this evidence, the interview was not a 'custodial interrogation' which required Miranda warnings. Cf. Payne v. State, 579 S.W.2d 932 (Tex.Cr.App. 1979) (holding general questioning by probation officer not a 'custodial interrogation'.)" (81). As previously pointed out, this Court refused the defendant's petition for discretionary review in Davis, thus implicitly approving the holding of the court of appeals.

Just recently, in Wicker v. State, 740 S.W.2d 779 (Tex.Cr.App. 1987), a majority of this Court, which amazingly did not even mention Paez in its opinion, although the issue involved facts which concerned another TDHR caseworker who had interviewed a "client", upheld similar statements that the defendant in that cause had made to the caseworker. The issue on appeal concerned the admissibility of both oral statements that the "client" had made to the caseworker as well as a written statement that the defendant gave the caseworker. Both statements were incriminating. At that time, the defendant was not under arrest or in lawful police custody. A copy of the written statement eventually reached the District Attorney's Office. Charges were thereafter filed against the defendant. In upholding the admissibility of the defendant's statements to the caseworker, the majority opinion concluded that when the defendant gave his written statement to the caseworker, he was not "in custody." The majority opinion also concluded: "Assuming arguendo that [the caseworker] was an agent of the State (footnote deleted), we are unable to distinguish this case from Oregon v. Mathiason, supra, [ 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) ] wherein the Supreme Court concluded that no custodial interrogation had occurred . . . [W]e hold that appellant was not in custody when he made his oral statements [sic] to [the caseworker]. The statement [sic] was admissible pursuant to Article 38.22, supra." (787).

Under Paez, I believe that a rational and reasonable mind can easily conclude that, when it comes to a TDHR caseworker who interviews an individual who is then suspected of committing either child neglect or child abuse, the individual, either before or after he has been formally charged with and/or arrested for committing some child abuse or child neglect offense, there is no requirement for the case-worker to give the "client" the Miranda warnings unless the case-worker is then acting as an agent of a legitimate law enforcement agency and is also acting pursuant to a legitimate police practice. In this instance, there is no evidence that Vatsis falls into either category; in fact, all of the evidence on this point is undisputed. Under Paez, the evidence in this cause is clearly sufficient to support the finding that when Vatsis interviewed appellant when he was incarcerated she was not acting as an agent of any legitimate law enforcement agency and was not acting pursuant to a legitimate police practice, but was simply acting as a caseworker for TDHR is expected to act as a matter of statutory law. Therefore, under Paez and McCrory, notwithstanding that appellant was then incarcerated in jail, appellant's admissions to Vatsis during the interview did not stem from custodial interrogation. Consequently, under Paez, there was no need for the requirements of Art. 38.22 or Miranda to be satisfied prior to the admission of her testimony into evidence before the jury.

I pause to briefly point out that Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), is clearly inapplicable to the issue because there is nothing in the record before us that might reflect or indicate that the interview that Vatsis had with appellant was court ordered or that appellant's conversation with Vatsis was not voluntary.

As previously pointed out, since Paez, everytime this Court has been given the opportunity to restrict or overrule what it stated and held in Paez, concerning admitting into evidence a defendant's statements to a TDHR caseworker, it has declined to do so.

How should TDHR caseworkers, who investigate child abuse or child neglect cases, view today's majority opinion? It appears to me that under today's majority opinion, if the caseworker is somehow made aware that the "client" is "the central figure in a criminal investigation concerning child abuse [or child neglect]", and charges have been or might be filed against the "client" for allegedly committing that offense, unless the caseworker is willing to assume the position of a certified, gun carrying, badge wearing police officer, and is further willing to perform like a real police officer must perform when he is interviewing a "suspect," the "client" is "off limits" to the caseworker. If the caseworker is not willing to assume the functional equivalent of a real life police officer, then he or she will be deemed to be acting as an agent of law enforcement pursuant to a police practice, even if he or she testifies, and such testimony is neither contradicted nor disputed, that he or she was not then acting as an agent of a law enforcement agency pursuant to a police practice. Also see and compare Commonwealth v. Ramos, 367 Pa. Super. 84, 532 A.2d 465 (1987), which is a "white horse" case that supports the appellant's contention.

I conclude that this is such a nebulous standard that it amounts to no standard at all in guiding caseworkers for TDHR or teachers, nurses, doctors, and day-care employees, who come within the statute, as to what they should do when confronted with a similar situation. All of these individuals, when they have cause to believe that a child has been or may be abused or neglected, are required to make an oral report to a local or State law enforcement agency within 48 hours after they first suspect that the child has been or may be abused or neglected. Teachers, like TDHR caseworkers, are employees of the State. Let us assume that a schoolteacher has cause to believe that one of her students has been or may be abused or neglected by the father of the child. However, the teacher has questions about her belief. She confronts the father about her suspicions. During the interview, she concludes that she really did not have cause to believe that her student had been or may be abused or neglected. Now that the teacher's suspicions have been favorably resolved to the benefit of the father, is the teacher still required to report her former suspicions as well as what she learned or concluded from the interview with the father? What if during the interview the father makes incriminating statements to the school teacher? Unquestionably, the teacher is required, as a matter of law, to report this to a local or State law enforcement agency. Will the statements that the father made to the school teacher be admissible in court?

Rather than leave TDHR caseworkers and professionals such as school teachers grasping what they must do under our law, when either the natural parent or lawful guardian of a child is suspected of being guilty of child abuse or child neglect, I would hold that if it can be concluded that the caseworker or the professional is acting as the functional equivalent of a certified peace officer, then that individual must act just like a real police officer must act under the same or similar circumstances, and will be held to the same standards that appellate courts apply to "real life" police officers.

I find that the majority opinion has broad implications. In this instance, we are only dealing with a TDHR caseworker who interviewed a natural parent who was then in jail after having been charged with committing a criminal offense on his natural child. However, the majority opinion can be applied to situations involving probation and parole officers, and other State employees, and perhaps non-State employees, who are not primarily charged with enforcement of a criminal statute, who interview their "clients" who are then "in custody." Also see Ringel, Searches and Seizures: Arrests and Confessions, § 26.5 and 26.05(b).

Given what the majority opinion states and holds, as well as what it does not state and hold, I say to governmental employees, such as TDHR caseworkers, "professionals," as that term is defined in the Family Code, probation officers, parole officers, welfare fraud investigators, and any other government personnel who are not primarily charged with enforcement of the criminal statutes: Unless you are willing to perform just like a certified peace officer must perform under like or similar circumstances, "clients" who are then incarcerated in a jail facility should not be interviewed by you if there is the possibility that the State might later attempt to have admitted into evidence statements the "client" makes to you.

CAMPBELL, Judge, concurring.

I wholeheartedly agree with the majority treatment of the core issue in this case. The facts in the instant case are clearly distinguishable from those in Paez v. State, 681 S.W.2d 34 (Tex.Crim.App. 1984). As has been stated by an author with some considerable knowledge of Anglo-American jurisprudence:

"The prior decided case stands only for a point actually necessary to the judgment. Anything else in the opinion is dictum. Even if the rule carefully laid down would lead to the decision in the case and was unmistakably meant to, the case is still 'distinguishable' if you can distinguish it on either the facts or the issue." Llewellyn, Commercial Transactions, pp. 16-17 (1946)."

I write solely for the purpose of examining the other "concurring" opinion in this case. What is it that Judge Teague "concurs" in? What legal principle or principles contained in the majority opinion are embraced by his "concurring" opinion? Does he find the Paez decision distinguishable from that in the instant case? No, indeed! Does Judge Teague conclude that the holding in Paez governs the disposition of the instant case? Yes indeed, he does! In fact Judge Teague concludes that the record clearly supports the Court of Appeals in its conclusion, "and under Paez the statements should have been admissible evidence." Teague, J., Concurring, slip op. at 7. And yet the majority opinion finds that appellant's statements were inadmissible. Does this portend that Judge Teague finds comfort in Presiding Judge McCormick's Dissenting Opinion? Nay, nay! Methinks Judge Teague finds succor (along with the appellant) in the concluding paragraph of the majority opinion. With these comments, I join the majority opinion.