I respectfully dissent.
The majority by its reliance on the majority opinion inMercer v. State, 450 S.W.2d 715 (Tex.Civ.App. — Austin 1970, error dism'd as moot) continues to give life to a rule of law that in my opinion should no longer be the law in Texas. The majority in Mercer and the majority here establish the rule that the Fourth Amendment, and its coordinate remedy, the Exclusionary Rule, do not apply to searches of students in school by school officials when the school officials set in loco parentis and not for an arm of the government.
I agree with Justice Hughes in his dissent in Mercer,supra, wherein he states that the action of the principal was as an agent of the government. As stated by the Fifth Circuit court in Horton v. Goose Creek Independent SchoolDistrict, 690 F.2d 470, 480 (5th Cir. 1982), ". . . it is beyond question that the school official employed and paid by the State and supervising children who are, for the most part, compelled to attend, is an agent of the government and is restrained by the Fourth Amendment." See Jones v. LatexoIndependent School District, 499 F. Supp. 223, 229 (E.D. Texas 1980).
In view of my declaration that State action was involved, the critical issue is whether the Fourth Amendment standard should be applied when evidence obtained in a search of a student by a school official is used in a criminal prosecution.
It is generally held that ". . . when the school official acts in furtherance of his duty to maintain a safe environment conducive to education, the usual accommodation is to require that the school official have 'reasonable cause' for his action." Horton, supra at 481. What about when, subsequent to such search, the school official calls in the police and turns over the fruits of the search to them for criminal prosecution? Can evidence seized by the school official on the basis of reasonable cause rather than probable cause be used in a criminal prosecution? The Court inHorton, supra, gave no opinion as to these issues but stated that where there is some component of law enforcement activity in the school official's actions, the considerations may be critically different. Horton, supra at 481, n. 19.
I submit that when a school official obtains evidence in the exercise of his obligations to pursue the legitimate interests of the school, he is no longer pursuing such interests when he turns the evidence over to the police to be used in a criminal prosecution. Instead, he is serving the State's interest of exercising its police powers to enforce its criminal statutes. The school interests could be served by simply suspending *Page 556 or expelling the student. Thus, I would hold that before such evidence could be used in a criminal prosecution, the school official must satisfy a standard of probable cause to search rather than a reasonable cause to search. See Doe v.Renfrow, 475 F. Supp. 1012, 1024 (N.D.Ind. 1979).
In the instant case it is questionable whether the school official had reasonable cause to search appellant. And certainly, he did not have probable cause to search. The judgment should be reversed and the case remanded to the trial court with instructions that the evidence obtained in the search of appellant be excluded.