Untitled Texas Attorney General Opinion ( 1975 )

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
p. 2735