              THEA~~~NEYGENERAI~
                      OF TElxAs
                          AUSTIN.      TRXAS        78711




                                       May 28,      1975


The Honorable Hal H. Hood                              Opinion No.       H-   618
Firemen’s    Pension Commissioner
503-F Sam Houston State Office Bldg.                   Re: Whether the Firemen’s
Austin,   Texas   78701                                Relief and Retirement    Fund
                                                       is subject to the Provisions
                                                       of the Employee Retirement
                                                       Income Security Act of 1974.

Dear Mr.   Hood:

        You have requested our opinion.regarding the applicability of
the Employee Retirement   Income Security Act of 1974 to the Firemen’s
Relief and Retirement  Fund.

         The Employee Retirement        Income Security Act, 29 U. S. C. 5 1001,
(1974 Supp.),   et se%, imposes liability upon the fiduciary of a pension
plan for errors or omissions      in its administration,  but permits the
administrators    of a covered plan to purchase liability insurance.      29
u. s. c. g g 1104-1110.  Specifically,   you ask whether these liability pro-
visions of the Act apply to the Board of Firemen’s       Relief and Retirement
Fund Trustees     of the City of Amarillo.

        The federal    Act declares,    in 29 U.S.     C.   5 1003(b),    that:

                The provisions   of this subchapter shall not apply
                to any employee benefit plan if:
                     (1) such plan is a governmental   plan (as
                     defined in section 1002(32)of this title). . .

“Governmental      plan” is defined in section       1002(32)as:

                . . . a plan established   or maintained for its
                employees    by the Government   of the United States,
                by the government    of any State or political subdivision
                thereof,  or by any agency or instrumentality    of any of
                the foregoing.




                                        p.   2734
The Honorable    Hal H. Hood      page 2       (H-618)




           It seems clear that the Firemen’s     Relief and Retirement    Fund
falls within the definition of “governmental      plan. ” Article   6243e. V. T; C. S. ,
creates a special retirement      and disability pension fund for the benefit
of firemen who are employed by the participating         municipalities.    Revenue
for the Fund is derived from a tax levied against fire insurance companies,
and from contributions      by the municipalities   and by participating   firemen.
The Fund is administered       in each city by a board composed of certain
officials,    together with a particular number of fir.emen and resident citizens.
See 45 Tex. Jur. 2d, Pensions,         $25. We hold therefore that, since the
Firemen’s      Relief and Retirement    Fund is a “governmental     plan, ” it is
specifically     excepted from the coverage of the Employee Retirement
Income Security Act of 1974.

                                  SUMMARY

                     The Firemen’s     Relief and Retirement   Fund is
                 a “governmental    plan” and thus not subject to the
                 provisions  of the Employee Retirement      Income
                 Security Act of 1974.

                                                    Very   truly yours,




                                                    Attorney   Genera.1 of Texas




           . KENDALL,     First   Assistant




C. ROBERT HEATH,         Chairman
Opinion Committee




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