Preview
Electronically Filed
7/21/2022 7:35 PM
Hidalgo County District Clerks
Reviewed By: Miriam Vazquez
CAUSE NO: C-4707-21-J
Mark Frayser, §
Plaintiff §
§ In the 430th Judicial District Court of
vs. §
§ Hidalgo County, Texas
Texas Parks & Wildlife Department, §
Defendant. §
Plaintiff’s Fourth Amended Petition
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES MARK FRAYSER, Plaintiff in the above-styled and numbered cause,
and files this his Fourth Amended Petition, and for cause of action would respectfully show the
following:
I. Discovery Control Plan
Discovery is intended to be conducted under Level 3 as set forth at Rule 190.4 of the
Texas Rules of Civil Procedure.
II. Parties
Plaintiff MARK FRAYSER is an individual who resides in Texas.
Defendant TEXAS PARKS AND WILDLIFE DEPARTMENT is a Texas state agency
or state governmental unit that has made an appearance herein.
III. Jurisdiction and Venue
Damages are in excess of the minimum jurisdictional limits of this court. Venue is proper
in Hidalgo County, Texas, under Section 15.002(a)(1) of the Texas Civil Practice & Remedies
Code, in that all or a substantial part of the events or omissions giving rise to the claim occurred
in Hidalgo County, Texas. See Tex. Civ. Prac. & Rem. Code Ann. § 15.002 (West 2021).
H:\P\20-5639\Pleadings\7.21.22 Plaintiff's 4th Amended Petition.wpd Page 1 of 7
Electronically Filed
7/21/2022 7:35 PM
Hidalgo County District Clerks
Reviewed By: Miriam Vazquez
Venue is proper in Hidalgo County, under Section 554.007(a) of the Texas Government
Code, in that a public employee of a state governmental entity may sue under the Texas
Whistleblower Act in a district court of the county in which the cause of action arises. See Tex.
Gov’t Code Ann. § 554.007(a) (West 2021).
Pursuant to Section 554.0035 of the Texas Government Code, Defendant TEXAS
PARKS AND WILDLIFE DEPARTMENT has waived its sovereign immunity for Plaintiff
FRAYSER’s claims governed by the same statute, invoking this Court’s jurisdiction. Tex. Govt.
Code § 554.0035 (West 2021).
IV. General Facts, Allegations, and Claims
Plaintiff MARK FRAYSER, former employee classified as Game Warden, Region 8,
District 51, Law Enforcement Division, with Defendant TEXAS PARKS AND WILDLIFE
DEPARTMENT (“TPWD”), brings a claim under the Texas Whistleblower Act (Chapter 554
of the Texas Government Code) against Defendant TPWD for unlawful retaliation. He reserves
the right to bring additional claims.
On August 17, 2021, TPWD Human Resources personnel finalized an investigation into
FRAYSER’s complaints to TPWD and found that several public employees of TPWD had
violated TPWD policies concerning equal employment opportunities, discrimination, and other
forms of misconduct. Among the complaints made were whistleblowing complaints. On August
23, 2021, just five days after completion of the investigation, Defendant TPWD terminated
Plaintiff FRAYSER’s employment.
1
District 5 includes Hidalgo and Cameron Counties. Plaintiff was never assigned to Travis
County.
H:\P\20-5639\Pleadings\7.21.22 Plaintiff's 4th Amended Petition.wpd Page 2 of 7
Electronically Filed
7/21/2022 7:35 PM
Hidalgo County District Clerks
Reviewed By: Miriam Vazquez
V. Plaintiff’s Claims
Under Rule 48 of the Texas Rules of Civil Procedure, the following claims are alleged
jointly and/or alternatively, with consistent and/or inconsistent facts and remedies. The claims are
as follows:
A. Texas Whistleblower Act (Tex. Gov’t Code Ann. Ch. 554) Claim
The allegations from Section IV. herein above are incorporated herein as if fully set forth
at length.
In or about January 2013, Plaintiff FRAYSER was hired by Defendant TPWD as a game
warden. TPWD game wardens are licensed peace officers with statewide jurisdiction. Plaintiff
FRAYSER was assigned to Cameron and Hidalgo Counties at the time of his termination of
employment and performed job duties in both counties. His job duties included enforcing the
Texas Parks & Wildlife Code and the Texas Penal Code. TPWD is a Texas state agency or state
governmental unit. FRAYSER was a public employee.
While assigned to Cameron and Hidalgo Counties by TPWD, Plaintiff FRAYSER made
one or more good-faith reports that his employer, TPWD, or other public employees violated the
law. These reports included the disclosure of information that officially seized trophies, mounts,
and animal skins (including ocelot skin rug comprised of multiple animals’ skins) were taken
home by Texas game wardens for personal possession rather than stored at TPWD as evidence
or officially destroyed or auctioned or retained/awarded to the State of Texas for educational
purposes. Other property taken home included weapons/firearms having evidence tags on them.
One or more of these seizures occurred in Hidalgo County and/or one or more of these seizures
were taken to homes of Texas game wardens residing in Hidalgo County. An example would be
H:\P\20-5639\Pleadings\7.21.22 Plaintiff's 4th Amended Petition.wpd Page 3 of 7
Electronically Filed
7/21/2022 7:35 PM
Hidalgo County District Clerks
Reviewed By: Miriam Vazquez
TPWD game warden Will Plumus who was assigned to Hidalgo County who took an ocelot rug
and firearms/weapons with evidence tags on them to his Hidalgo County home. Exh. No. “5";
Exh. No. “7”. After Plaintiff FRAYSER’s whistleblowing reporting, TPWD law enforcement
retrieved these items. These reports also included the disclosure of information that Texas game
wardens had seized animals and had taken the animals home as pets for their own families. One
or more of these game wardens resided in Hidalgo County where the animals were taken. An
example would be TPWD game warden Roel Cantu who was assigned to Hidalgo County who
with the approval of Captain Dowdy took to his Hidalgo County home a seized ocelot as a pet.
Exh. No. “6". These reports included TPWD game wardens assigned to Hidalgo County who
threw evidence into dumpsters in Hidalgo County rather than posting the property as
seized/abandoned property as required by law.
Plaintiff FRAYSER’s reports were made to one or more public entities including TPWD
Human Resources, TPWD Internal Affairs, the Texas Department of Public Safety Integrity
Unit, and the Texas Attorney General’s Office. Each of the aforementioned are appropriate law-
enforcement authorities.
By virtue of his reporting the allegations of criminal misconduct, FRAYSER reported to
TPWD Human Resources, TPWD Internal Affairs, the Texas Department of Public Safety
Integrity Unit, and the Texas Attorney General’s Office violations of Chapter 39 (abuse of office)
of the Texas Penal Code and Chapter 12 of the Texas Parks and Wildlife Code, among other
crimes.
On August 23, 2021, Plaintiff FRAYSER suffered an adverse personnel action. His
employment was terminated by Defendant TPWD. There were no valid grounds for the
H:\P\20-5639\Pleadings\7.21.22 Plaintiff's 4th Amended Petition.wpd Page 4 of 7
Electronically Filed
7/21/2022 7:35 PM
Hidalgo County District Clerks
Reviewed By: Miriam Vazquez
separation of his employment on August 23, 2021. But for FRAYSER’s reporting of TPWD and
its employees’ illegal conduct, the actions taken by the TPWD against FRAYSER would not
have occurred. FRAYSER would show that the stated reason by TPWD for FRAYSER’s
termination is false. FRAYSER was an exemplary employee.
B. No Federal Claims Asserted
FRAYSER asserts no federal claims herein.
C. Reservation of Rights
FRAYSER reserves the right to bring such other and further claims as he deems
necessary.
VI. Damages
FRAYSER sues TPWD for all damages that he is entitled.
FRAYSER sues TPWD for compensatory damages suffered in the past, including
economic losses, lost wages, emotional pain and suffering, inconvenience, mental anguish, loss
of enjoyment of life, tarnished reputation, and other non-economic damages, and compensatory
damages that, in reasonable probability will be sustained in the future, which include economic
losses, lost wages, emotional pain and suffering, inconvenience, mental anguish, loss of
enjoyment of life, and other non-economic losses.
FRAYSER sues TPWD for his reasonable attorney’s fees in the past and future.
VII. Jury Demand
Plaintiff MARK FRAYSER has demanded a trial by jury and tendered the appropriate
fee.
H:\P\20-5639\Pleadings\7.21.22 Plaintiff's 4th Amended Petition.wpd Page 5 of 7
Electronically Filed
7/21/2022 7:35 PM
Hidalgo County District Clerks
Reviewed By: Miriam Vazquez
VIII. Prayer
WHEREFORE, PREMISES CONSIDERED, Plaintiff MARK FRAYSER
respectfully prays that upon trial of this suit, he recover from Defendant TEXAS PARKS AND
WILDLIFE DEPARTMENT the following:
1. injunctive relief or reinstatement;
2. compensatory damages, including back pay;
3. all damages allowed under Plaintiff’s statutory causes of action;
4. pre-judgment interest as provided by law;
5. post-judgment interest as provided by law;
6. costs of court;
7. attorney’s fees; and
8. such other and further relief at law or in equity which he may show himself justly
entitled.
Respectfully submitted,
DALE & KLEIN, L.L.P.
1100 E. Jasmine, Ste. 202
McAllen, Texas 78501
Telephone No. 956.687.8700
Facsimile No. 956. 687.2416
office@daleklein.com
/s/ Katie P. Klein
KATIE P. KLEIN
State Bar No. 11561900
WILLIAM D. MOUNT, JR.
State Bar No. 14602950
MACARENA ORTIZ
State Bar No. 24086123
Attorneys for Plaintiff Mark Frayser
H:\P\20-5639\Pleadings\7.21.22 Plaintiff's 4th Amended Petition.wpd Page 6 of 7
Electronically Filed
7/21/2022 7:35 PM
Hidalgo County District Clerks
Reviewed By: Miriam Vazquez
Certificate of Service
I hereby certify that a true and correct copy of the foregoing document has been
forwarded by electronic delivery on July 21, 2022, to counsel of record:
John Ramsey
Assistant Attorney General
Office of the Attorney General
General Litigation Division -019
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
john.ramsey@oag.texas.gov
/s/ William Mount, Jr.
WILLIAM D. MOUNT, JR.
H:\P\20-5639\Pleadings\7.21.22 Plaintiff's 4th Amended Petition.wpd Page 7 of 7
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Katie Klein on behalf of Katie Klein
Bar No. 11561900
office@dklawllp.com
Envelope ID: 66565436
Status as of 7/22/2022 8:04 AM CST
Associated Case Party: Mark Frayser
Name BarNumber Email TimestampSubmitted Status
Katie Pearson Klein office@daleklein.com 7/21/2022 7:35:03 PM SENT
William D.Mount, Jr. office@daleklein.com 7/21/2022 7:35:03 PM SENT
JOHNNY MUNOZ JOHNNYM@DALEKLEIN.COM 7/21/2022 7:35:03 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Katie Klein on behalf of Katie Klein
Bar No. 11561900
office@dklawllp.com
Envelope ID: 66565436
Status as of 7/22/2022 8:04 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Patricia Cordes patricia.cordes@oag.texas.gov 7/21/2022 7:35:03 PM SENT
KATIE P.KLEIN office@dklawllp.com 7/21/2022 7:35:03 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.
Katie Klein on behalf of Katie Klein
Bar No. 11561900
office@dklawllp.com
Envelope ID: 66565436
Status as of 7/22/2022 8:04 AM CST
Associated Case Party: Texas Parks & Wildlife Department
Name BarNumber Email TimestampSubmitted Status
John Ramsey John.Ramsey@oag.texas.gov 7/21/2022 7:35:03 PM SENT
Preview
Electronically Filed 7/21/2022 7:35 PM Hidalgo County District Clerks Reviewed By: Miriam Vazquez CAUSE NO: C-4707-21-J Mark Frayser, § Plaintiff § § In the 430th Judicial District Court of vs. § § Hidalgo County, Texas Texas Parks & Wildlife Department, § Defendant. § Plaintiff’s Fourth Amended Petition TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES MARK FRAYSER, Plaintiff in the above-styled and numbered cause, and files this his Fourth Amended Petition, and for cause of action would respectfully show the following: I. Discovery Control Plan Discovery is intended to be conducted under Level 3 as set forth at Rule 190.4 of the Texas Rules of Civil Procedure. II. Parties Plaintiff MARK FRAYSER is an individual who resides in Texas. Defendant TEXAS PARKS AND WILDLIFE DEPARTMENT is a Texas state agency or state governmental unit that has made an appearance herein. III. Jurisdiction and Venue Damages are in excess of the minimum jurisdictional limits of this court. Venue is proper in Hidalgo County, Texas, under Section 15.002(a)(1) of the Texas Civil Practice & Remedies Code, in that all or a substantial part of the events or omissions giving rise to the claim occurred in Hidalgo County, Texas. See Tex. Civ. Prac. & Rem. Code Ann. § 15.002 (West 2021). H:\P\20-5639\Pleadings\7.21.22 Plaintiff's 4th Amended Petition.wpd Page 1 of 7 Electronically Filed 7/21/2022 7:35 PM Hidalgo County District Clerks Reviewed By: Miriam Vazquez Venue is proper in Hidalgo County, under Section 554.007(a) of the Texas Government Code, in that a public employee of a state governmental entity may sue under the Texas Whistleblower Act in a district court of the county in which the cause of action arises. See Tex. Gov’t Code Ann. § 554.007(a) (West 2021). Pursuant to Section 554.0035 of the Texas Government Code, Defendant TEXAS PARKS AND WILDLIFE DEPARTMENT has waived its sovereign immunity for Plaintiff FRAYSER’s claims governed by the same statute, invoking this Court’s jurisdiction. Tex. Govt. Code § 554.0035 (West 2021). IV. General Facts, Allegations, and Claims Plaintiff MARK FRAYSER, former employee classified as Game Warden, Region 8, District 51, Law Enforcement Division, with Defendant TEXAS PARKS AND WILDLIFE DEPARTMENT (“TPWD”), brings a claim under the Texas Whistleblower Act (Chapter 554 of the Texas Government Code) against Defendant TPWD for unlawful retaliation. He reserves the right to bring additional claims. On August 17, 2021, TPWD Human Resources personnel finalized an investigation into FRAYSER’s complaints to TPWD and found that several public employees of TPWD had violated TPWD policies concerning equal employment opportunities, discrimination, and other forms of misconduct. Among the complaints made were whistleblowing complaints. On August 23, 2021, just five days after completion of the investigation, Defendant TPWD terminated Plaintiff FRAYSER’s employment. 1 District 5 includes Hidalgo and Cameron Counties. Plaintiff was never assigned to Travis County. H:\P\20-5639\Pleadings\7.21.22 Plaintiff's 4th Amended Petition.wpd Page 2 of 7 Electronically Filed 7/21/2022 7:35 PM Hidalgo County District Clerks Reviewed By: Miriam Vazquez V. Plaintiff’s Claims Under Rule 48 of the Texas Rules of Civil Procedure, the following claims are alleged jointly and/or alternatively, with consistent and/or inconsistent facts and remedies. The claims are as follows: A. Texas Whistleblower Act (Tex. Gov’t Code Ann. Ch. 554) Claim The allegations from Section IV. herein above are incorporated herein as if fully set forth at length. In or about January 2013, Plaintiff FRAYSER was hired by Defendant TPWD as a game warden. TPWD game wardens are licensed peace officers with statewide jurisdiction. Plaintiff FRAYSER was assigned to Cameron and Hidalgo Counties at the time of his termination of employment and performed job duties in both counties. His job duties included enforcing the Texas Parks & Wildlife Code and the Texas Penal Code. TPWD is a Texas state agency or state governmental unit. FRAYSER was a public employee. While assigned to Cameron and Hidalgo Counties by TPWD, Plaintiff FRAYSER made one or more good-faith reports that his employer, TPWD, or other public employees violated the law. These reports included the disclosure of information that officially seized trophies, mounts, and animal skins (including ocelot skin rug comprised of multiple animals’ skins) were taken home by Texas game wardens for personal possession rather than stored at TPWD as evidence or officially destroyed or auctioned or retained/awarded to the State of Texas for educational purposes. Other property taken home included weapons/firearms having evidence tags on them. One or more of these seizures occurred in Hidalgo County and/or one or more of these seizures were taken to homes of Texas game wardens residing in Hidalgo County. An example would be H:\P\20-5639\Pleadings\7.21.22 Plaintiff's 4th Amended Petition.wpd Page 3 of 7 Electronically Filed 7/21/2022 7:35 PM Hidalgo County District Clerks Reviewed By: Miriam Vazquez TPWD game warden Will Plumus who was assigned to Hidalgo County who took an ocelot rug and firearms/weapons with evidence tags on them to his Hidalgo County home. Exh. No. “5"; Exh. No. “7”. After Plaintiff FRAYSER’s whistleblowing reporting, TPWD law enforcement retrieved these items. These reports also included the disclosure of information that Texas game wardens had seized animals and had taken the animals home as pets for their own families. One or more of these game wardens resided in Hidalgo County where the animals were taken. An example would be TPWD game warden Roel Cantu who was assigned to Hidalgo County who with the approval of Captain Dowdy took to his Hidalgo County home a seized ocelot as a pet. Exh. No. “6". These reports included TPWD game wardens assigned to Hidalgo County who threw evidence into dumpsters in Hidalgo County rather than posting the property as seized/abandoned property as required by law. Plaintiff FRAYSER’s reports were made to one or more public entities including TPWD Human Resources, TPWD Internal Affairs, the Texas Department of Public Safety Integrity Unit, and the Texas Attorney General’s Office. Each of the aforementioned are appropriate law- enforcement authorities. By virtue of his reporting the allegations of criminal misconduct, FRAYSER reported to TPWD Human Resources, TPWD Internal Affairs, the Texas Department of Public Safety Integrity Unit, and the Texas Attorney General’s Office violations of Chapter 39 (abuse of office) of the Texas Penal Code and Chapter 12 of the Texas Parks and Wildlife Code, among other crimes. On August 23, 2021, Plaintiff FRAYSER suffered an adverse personnel action. His employment was terminated by Defendant TPWD. There were no valid grounds for the H:\P\20-5639\Pleadings\7.21.22 Plaintiff's 4th Amended Petition.wpd Page 4 of 7 Electronically Filed 7/21/2022 7:35 PM Hidalgo County District Clerks Reviewed By: Miriam Vazquez separation of his employment on August 23, 2021. But for FRAYSER’s reporting of TPWD and its employees’ illegal conduct, the actions taken by the TPWD against FRAYSER would not have occurred. FRAYSER would show that the stated reason by TPWD for FRAYSER’s termination is false. FRAYSER was an exemplary employee. B. No Federal Claims Asserted FRAYSER asserts no federal claims herein. C. Reservation of Rights FRAYSER reserves the right to bring such other and further claims as he deems necessary. VI. Damages FRAYSER sues TPWD for all damages that he is entitled. FRAYSER sues TPWD for compensatory damages suffered in the past, including economic losses, lost wages, emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, tarnished reputation, and other non-economic damages, and compensatory damages that, in reasonable probability will be sustained in the future, which include economic losses, lost wages, emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-economic losses. FRAYSER sues TPWD for his reasonable attorney’s fees in the past and future. VII. Jury Demand Plaintiff MARK FRAYSER has demanded a trial by jury and tendered the appropriate fee. H:\P\20-5639\Pleadings\7.21.22 Plaintiff's 4th Amended Petition.wpd Page 5 of 7 Electronically Filed 7/21/2022 7:35 PM Hidalgo County District Clerks Reviewed By: Miriam Vazquez VIII. Prayer WHEREFORE, PREMISES CONSIDERED, Plaintiff MARK FRAYSER respectfully prays that upon trial of this suit, he recover from Defendant TEXAS PARKS AND WILDLIFE DEPARTMENT the following: 1. injunctive relief or reinstatement; 2. compensatory damages, including back pay; 3. all damages allowed under Plaintiff’s statutory causes of action; 4. pre-judgment interest as provided by law; 5. post-judgment interest as provided by law; 6. costs of court; 7. attorney’s fees; and 8. such other and further relief at law or in equity which he may show himself justly entitled. Respectfully submitted, DALE & KLEIN, L.L.P. 1100 E. Jasmine, Ste. 202 McAllen, Texas 78501 Telephone No. 956.687.8700 Facsimile No. 956. 687.2416 office@daleklein.com /s/ Katie P. Klein KATIE P. KLEIN State Bar No. 11561900 WILLIAM D. MOUNT, JR. State Bar No. 14602950 MACARENA ORTIZ State Bar No. 24086123 Attorneys for Plaintiff Mark Frayser H:\P\20-5639\Pleadings\7.21.22 Plaintiff's 4th Amended Petition.wpd Page 6 of 7 Electronically Filed 7/21/2022 7:35 PM Hidalgo County District Clerks Reviewed By: Miriam Vazquez Certificate of Service I hereby certify that a true and correct copy of the foregoing document has been forwarded by electronic delivery on July 21, 2022, to counsel of record: John Ramsey Assistant Attorney General Office of the Attorney General General Litigation Division -019 P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 john.ramsey@oag.texas.gov /s/ William Mount, Jr. WILLIAM D. MOUNT, JR. H:\P\20-5639\Pleadings\7.21.22 Plaintiff's 4th Amended Petition.wpd Page 7 of 7 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Katie Klein on behalf of Katie Klein Bar No. 11561900 office@dklawllp.com Envelope ID: 66565436 Status as of 7/22/2022 8:04 AM CST Associated Case Party: Mark Frayser Name BarNumber Email TimestampSubmitted Status Katie Pearson Klein office@daleklein.com 7/21/2022 7:35:03 PM SENT William D.Mount, Jr. office@daleklein.com 7/21/2022 7:35:03 PM SENT JOHNNY MUNOZ JOHNNYM@DALEKLEIN.COM 7/21/2022 7:35:03 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Katie Klein on behalf of Katie Klein Bar No. 11561900 office@dklawllp.com Envelope ID: 66565436 Status as of 7/22/2022 8:04 AM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Patricia Cordes patricia.cordes@oag.texas.gov 7/21/2022 7:35:03 PM SENT KATIE P.KLEIN office@dklawllp.com 7/21/2022 7:35:03 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Katie Klein on behalf of Katie Klein Bar No. 11561900 office@dklawllp.com Envelope ID: 66565436 Status as of 7/22/2022 8:04 AM CST Associated Case Party: Texas Parks & Wildlife Department Name BarNumber Email TimestampSubmitted Status John Ramsey John.Ramsey@oag.texas.gov 7/21/2022 7:35:03 PM SENT