dissenting.
I agree with the majority’s holding that an injured employee is not required to have suffered a disability for at least seven days in order to receive impairment income benefits. However, I believe that the Galveston County district court did not have jurisdiction to hear Texas General Indemnity’s (TGI) cause of action. I would hold that jurisdiction was mandatory in Travis County.
Texas Workers’ Compensation Commission (TWCC) argues that the Galveston County district court did not have jurisdiction to hear TGI’s attack on the rules promulgated by an administrative agency. It relies on Tex Gov’t Code Ann. § 2001.038(b) (Vernon Supp.1998), which states that a challenge to a rule may be brought only in a Travis County district' court. Tex. Gov’t Code Ann. § 2001.176 (Vernon Supp.1998) states that unless otherwise provided by the statute, judicial review of a contested case must be filed in Travis County district court. TGI and Eisler argue on appeal that jurisdiction was proper in the county where the employee resided on the date the disability began, because the claim was for eligibility for benefits. Tex.Lab.CodeAnn. § 410.252(b)(2) (Vernon 1996).
Under the Workers’ Compensation Act, judicial review of issues other than compensa-bility and eligibility for, or amount of, income or death benefits is governed by chapter 2001 of the Government Code. Tex.Lab.Code. Ann. § 410.255 (Vernon 1996). “Unless otherwise provided by statute: (1) the petition must be filed in a Travis County district court.” Tex. Gov’t Code Ann. § 2001.176(b) (Vernon Pamph 1998). Tex. Gov’t Code Ann. § 2001.038 states:
(a) The validity or applicability of a rule, including an emergency rule adopted under Section 2001.034, may be determined in an action for declaratory judgment if it is alleged that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, a legal right or privilege of the plaintiff.
(b) The action may be brought only in a Travis County district court.
I believe that this venue provision is jurisdictional in nature and mandatory.
While the decision to appeal is optional, the place of trial is jurisdictional. Grounds v. Tolar Independent School Dist., 707 S.W.2d 889, 892 (Tex.1986) (holding that similar language in Tex.Educ.Code Ann. §§ 21.201-21.211 (Vernon Supp.1986) created mandatory jurisdiction in Travis County); Rowden v. Texas Catastrophe Property Ins. Ass’n, 677 S.W.2d 83, 88 (Tex.App.—Corpus Christi 1984, writ ref d n.r.e.) (holding “This statutory provision for place of trial is jurisdictional and not merely a permissive venue provision” when interpreting Tex.Ins.Code Ann. art. 21.49, section 9). Lack of subject matter jurisdiction is fundamental error and may be raised for the first time on appeal. Texas Ass’n of Business v. Texas Air Control Board, 852 S.W.2d 440, 445 (Tex.1994); *748Dallas County Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex.App.—Dallas 1994, writ denied). The issue of subject matter jurisdiction may not be waived by the parties. Texas Ass’n of Business, 852 S.W.2d at 445.
Appellant filed two suits: a declaratory judgment action in Travis County and a civil action in Galveston County. Both petitions allege that Eisler was not entitled to recover benefits because rule 180.8 contravened the purpose and intent of section 408.082. TGI never challenged the factual findings of the contested ease hearing officer.
In its response to Eisler’s motion to transfer venue in the Travis County suit, TGI itself argued that venue in Travis County was mandatory: (1) “Venue of this action is mandatory in Travis County under Section 15.0116 of the Civil Practice and Remedies Code and Section 2001.038 of the Government Code;” (2) “Because the Texas Administrative Procedures Act (including § 2001.038) is applicable to the Texas Workers’ Compensation Commission rules, it creates mandatory jurisdiction in [Travis County] court for this action.”
Furthermore, TGI’s petition against Eisler filed in Galveston County is the functional equivalent of the Travis County declaratory judgment action against the TWCC. In its Galveston County petition, TGI states:
[Eisler] lost no time from work as a result of his hearing loss. Section 408.082 of the Texas Labor Code states “Income benefits may not be paid under this subtitle for an injury that does not result in disability for at least one (1) week.” Impairment income benefits are “income benefits,” for purposes of this statute. Consequently, [Eisler] is not entitled to impairment income benefits because he did not sustain at least an eighth (8th) day of disability.
The Commission has enacted 28 Tex.Admin.Code § 130.8 (Rule 130.8), which implies impairment income benefits can be paid regardless of whether [Eisler] is disabled for more than one week. As such, Rule 130.8 is inconsistent with § 408.082 of the Act, and placés additional conditions on a carrier for payment of benefits which are in excess of those obligations the legislature enacted. Rule 130.8 has no effect because of this conflict between the statute and the administrative rule.
In effect, TGI is arguing that Eisler should lose because the conflict between the rule and the statute means that the rule is invalid and should not be applied. TGI is not challenging the factual findings of the TWCC, but rather the validity of the rules enacted by the TWCC. As such, venue is mandatory and jurisdictional in Travis County. Therefore, the Galveston County district court did not have subject matter jurisdiction over TGI’s suit against Eisler and the TWCC.
I would reverse the summary judgments granted by the trial court and remand the causes with instructions that the trial court dismiss the causes of action without prejudice for want of jurisdiction.