(dissenting):
Substantial constitutional error occurred in this case. See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Appellant’s incriminating admissions were made in response to direct questioning by Mrs. Cirks, “a Child Protective Services Specialist” for the State of Texas Department of Human Services. This deliberate elicitation of incriminating statements occurred after his Sixth Amendment right to counsel had attached and without a proper waiver of that right. See Michigan v. Harvey, 494 U.S. 344, 349, 110 S.Ct. 1176, 1179, 108 L.Ed.2d 293 (1990); Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985) . See also Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) . Accordingly, I must respectfully dissent. See Cates v. State, 776 S.W.2d 170 (Tex.Cr.App.1989); State v. Graves, 60 N.J. 441, 291 A.2d 2 (1972).
Turning first to our prior decision in this case, I note that the majority opinion herein fails to fully note our earlier remand order. That order said:
No. 58978/AR. U.S. v. Manuel R. Moreno. CMR 449190. Upon consideration of the granted issues (26 MJ 207), we hold that Mil.R.Evid. 103 is no bar to our consideration of the first granted issue in this case. Our review of the record establishes that [Mrs.] Cirks, a social worker for the Department of Human Services of the State of Texas, actively solicited appellant’s confession and subsequently reported it to trial counsel pursuant to an agreement between the State and the local command authorities. See generally Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); United States v. Henry, 447 U.S. 264, 273, 100 S.Ct. 2183, 2188, 65 L.Ed.2d 115 (1980); cf. Kuhlmann v. Wilson, 477 U.S. 436, 455-60, 106 S.Ct. 2616, 2628-31, 91 L.Ed.2d 364 (1986). Her . interview of appellant occurred after he had been arrested by military police and asserted his right to counsel; after military charges had been preferred against him; and after military counsel had been assigned to him. See Michigan v. Jackson, 475 U.S. 625, 627, *122106 S.Ct. 1404, 1406, 89 L.Ed.2d 631 (1986); Maine v. Moulton, 474 U.S. at 176, 106 S.Ct. at 488; United States v. Henry, supra; cf. Patterson v. Illinois, 487 U.S. 285, 297 n. 9, 108 S.Ct. 2389, 2397 n. 9, 101 L.Ed.2d 261 (1988). We conclude that a factfinding hearing is appropriate to determine the extent of this attorney-client relationship and whether appellant properly waived his Sixth-Amendment right to counsel prior to this interview. See United States v. Wattenbarger, 21 MJ 41 (CMA 1985), cert. denied, 477 U.S. 904, 106 S.Ct. 3272, 91 L.Ed.2d 563 (1986); see generally Patterson v. Illinois, 487 U.S. at 290 n. 3, 108 S.Ct. at 2392 n. 3. Accordingly, it is ordered that the decision of the United States Army Court of Military Review, 25 MJ 523, is set aside. The record of trial is returned to the Judge Advocate General of the Army for transmission to an officer exercising general court-martial jurisdiction for the factfinding hearing into the matters set forth above. Following such proceeding, Article 66, Uniform Code of Military Justice, 10 USC § 866, shall apply.
28 MJ 152 (1989) (emphasis added; footnote omitted).
This order clearly implies that Mrs. Cirks was an agent for law enforcement because of her state agency’s agreement to seek out and report information concerning possible child abuse on base to military authorities. The fact that Mrs. Cirks was also required by state law to investigate child abuse and turn over “requested” information discovered to other law enforcement authorities logically supports, not undermines, our previous conclusion concerning her police function. Moreover, this legal conclusion (United States v. York, 933 F.2d 1343, 1358 (7th Cir.1991)) on police agency for Sixth Amendment purposes was decided in accordance with well-established federal case law. See United States v. Johnson, 954 F.2d 1015, 1019 (5th Cir.1992); United States v. Taylor, 800 F.2d 1012, 1015-16 (10th Cir.1986); see also State v. Gosselin, 131 N.H. 243, 552 A.2d 974, 976-78 (1988).
Turning next to the majority opinion, it holds for Sixth Amendment purposes that Mrs. Cirks was not “a member of the ‘prosecution team.’ ” 36 MJ at 120. However, I note that appellant was interviewed by this state social worker as part of a child-abuse investigation initiated by the Criminal Investigation Command (CID). There was a working relationship between the CID and the state social worker’s agency which included sharing information obtained from social-worker interviews.1 Finally, Mrs. Cirks’ duty as an employee of the Child Protective Services included investigation of reports of child-abuse cases for the purpose of protecting children and in the interest of law enforcement.2 The bottom line is that Mrs. Cirks was not acting as a private citizen or as a disinterested state official but as a state crimes investigator cooperating with military law enforcement agents in accordance with state statutes and prearranged agreement. (See federal cases cited above.) See Cates v. State, supra; State v. Helewa, 223 N.J.Super. 40, 537 A.2d 1328 (A.D.1988). Cf. United States v. Watson, 894 F.2d 1345 (D.C.Cir. 1990). In view of the Court of Military Review’s finding of no proper waiver of *123appellant’s Sixth Amendment right to counsel prior to this interview, a Sixth Amendment constitutional violation clearly occurred. Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). Cf Buchanan v. Kentucky, 483 U.S. 402, 424-25, 107 S.Ct. 2906, 2918-19, 97 L.Ed.2d 336 (1987).
The majority opinion also predicates its Sixth Amendment holding on its earlier holding that, for Article 31, UCMJ, 10 USC § 831, purposes Mrs. Cirks did not become an agent or instrument of the military investigators. 36 MJ at 115-116, 117-118. It rests this conclusion in part on a case which was vacated and remanded by the Supreme Court. United States v. Jordan, 29 MJ 177 (CMA 1989), vacated and remanded, 498 U.S. 1009, 111 S.Ct. 575, 112 L.Ed.2d 580 (1990), aff'd, 35 MJ 856 (NMCMR 1992). In any event, such a conclusion does not resolve the Sixth Amendment question in this case because, even if Mrs. Cirks was not an instrument of the military, she still was a state police agent.
The other issues in this case need not be addressed. In view of the unique testimonial context of this case, I would find prejudice, reverse the Court of Military Review, and order a rehearing on this basis alone. See generally Arizona v. Fulminante, 499 U.S.-, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
. The actual agreement between Fort Bliss officials and the Department of Human Services for the State of Texas was not admitted as evidence in this case.' However, the existence of an agreement authorizing this state agency to investigate military child-sexual-abuse cases was uncontrovertedly established by the prosecution’s own witness, the state “Child Protective Services Specialist,” Mrs. Cirks. Moreover, it was also uncontrovertedly established that this agreement provided for close coordination with the CID including sharing information and taking other steps which would satisfy the CID investigatory needs.
. Questions by Individual Defense Counsel:
Q. As a result of those questions, you are mandated by law and by your own operating procedures that you must report an incident such as this within 24 hours to law enforcement agencies, don’t you?
A. Yes.
Q. Okay. So, your role is twofold? One is to serve the interest of law enforcement; and, two, for the protection of the children; isn’t that correct?
A. I get — yes.
IDC. Thank you. No further questions.