author: Justice SMITH Chief Justice JEFFERSON,

text:
    1464-EIGHT, LTD. & Millis Management Corporation, Petitioners, v. Gail Ann JOPPICH, Respondent.
    No. 03-0109.
    Supreme Court of Texas.
    Argued Jan. 28, 2004.
    Decided Dec. 31, 2004.

      Robert B. Gilbreath, Jenkens & Gilchrist, Dallas, Christopher M. Brown, Jenkens & Gilchrist, Houston, for Petitioner.
    G.P. Matherne, Houston, for Respondent.
   Justice SMITH

delivered the opinion of the Court,

in which Justice HECHT, Justice OWEN, Justice O’NEILL, Justice WAINWRIGHT, and Justice MEDINA joined.

STEVEN WAYNE SMITH, Justice.

The question presented is whether section 87(l)(a) of the Restatement (Second) of Contracts should be incorporated into the common law of Texas. See 3 Williston & Lord, A Treatise on the Law of Contracts § 7:23 (4th ed. 1992) (“As far as option contracts are concerned, the Restatement (Second) has taken the position, adopted by some common law courts, that a false recital of nominal consideration is sufficient to support the irrevocability of an offer so long as the underlying exchange is fair and the offer is to be accepted within a reasonable time.”).

The petitioners, citing section 87(l)(a) of the Restatement (Second) of Contracts, assert that the respondent’s offer to sell real property should be binding as an option contract because the offer was in writing and signed by the respondent, acknowledged the receipt of a nominal consideration of ten dollars, and proposed an exchange on fair terms within a reasonable time. The respondent, contending that the parties’ written option agreement is unenforceable, asserts that the agreement lacks consideration because the recited nominal consideration was never actually paid, and that the offer was revoked before it was properly accepted.

In this case of first impression, we agree with the petitioners that the nonpayment of the recited nominal consideration does not preclude enforcement of the parties’ written option agreement. Therefore, we will reverse and remand.

I

In July 1997, Gail Ann Joppich entered into an earnest money contract with 1464-Eight, Ltd. and Millis Management Corporation (collectively “Millis”) under which Joppich agreed to buy, and Millis agreed to convey, an undeveloped residential lot located in a subdivision being developed by Millis. The purchase price was $65,000. An addendum attached to the earnest money contract provided:

All Lots being sold in Shiloh Lake Estates Subdivision are being sold pursuant to an Option Agreement to be executed by Buyer and Seller at closing that shall survive closing and provide Seller with an option to purchase the Property from the Buyer at a price equal to 90% of the sale price herein if Buyer fails to commence construction of a private residence on the Property within 18 months from the date of closing.

At the closing later the same month, Millis executed a special warranty deed conveying the lot to Joppich. In addition, the parties executed a separate four-page document entitled “Option Agreement.” The notarized document, which was signed by both Joppich and Millis, provided:

1. Grant of Option. In consideration of the sum of Ten and No/100 ($10.00) Dollars (“Option Fee”) paid in cash by Developer, the receipt and sufficiency of which is hereby acknowledged and confessed, Purchaser hereby grants to Developer the exclusive right and option to purchase [the Property], This Option may be exercised at any time from and after January 21,1999.
2. Purchase Price. The total purchase price for the Property shall be [$58,500] and shall be due and payable at closing.
3. Expiration Date. This Option shall automatically expire at 5:00 o’clock p.m. on the date which is five (5) years after the date of execution and recording in the Office of the County Clerk of Fort Bend County, Texas unless prior to the expiration date this Option is exercised by Developer.
4.Termination. This Option shall automatically terminate on the date that Purchaser, or Purchaser’s assigns, commence construction of a primary residence which has been approved by [the appropriate committee].

The Option Agreement did not contain an express statement regarding whether the parties intended the offer to sell real property to be revocable or irrevocable.

In October 1999, Joppich filed suit against Millis, seeking a declaratory judgment that the Option Agreement was unenforceable. In her original petition, Jop-pich asserted that “[although the Option Agreement states that a sum of Ten and No/100 dollars was given to Plaintiff in consideration for granting the option, this sum was not then nor has it ever been tendered to nor paid to Plaintiff,” and she requested that “the Court declare that the Agreement granting the exclusive right and option to purchase [the Property] to the Developer is void and unenforceable for lack of consideration or alternatively, failure of consideration.” Millis answered with a general denial.

In September 2000, Millis filed a counterclaim seeking specific performance, damages, and attorney’s fees, asserting:

Counter Defendant failed to begin construction of a primary residence on the property, therefore, Counter Plaintiffs sent notice of their exercising of the option to Counter Defendant on September 4, 1999.... Counter Defendant refused and continues to refuse to convey the property pursuant to the terms of the option.

Joppich answered with a general denial. In addition, in compliance with Texas Rules of Civil Procedure 93 and 94, the answer was verified by affidavit and set forth the affirmative defenses of lack of consideration and failure of consideration.

In January 2001, Joppich moved for final summary judgment “based on failure and/or lack of consideration.” Joppich asserted that “[sjince no consideration flowed from Defendants to Plaintiff and she revoked the Option Agreement before consideration had in fact passed, the Option Agreement is void and unenforceable.” In her affidavit, which was attached to the motion, Joppich stated: “The Option Agreement states that a sum of Ten and No/100 dollars was given to me in consideration for granting Defendants the right to repurchase the property under certain conditions. This sum was not then nor has it ever been tendered to or paid to me.”

Millis responded to Joppich’s motion and, in the same document, moved for partial summary judgment. Millis asserted:

At the closing, Plaintiff acknowledged the receipt of ten dollars by signing the Option Agreement. She did not mention to anyone before or after signing the agreement that she had not actually received the ten dollars. Texas case law is clear that this option is supported by adequate consideration and at most, Plaintiffs alleged failure to actually receive the recited consideration creates nothing more than a right to payment of the stated sum.

In support of the motion for partial summary judgment, Millis attached the Option Agreement. Millis proffered no additional summary judgment evidence regarding whether the recited nominal consideration of ten dollars was actually paid. In the motion, Millis requested only a declaration that the Option Agreement was enforceable.

In February 2001, the trial court denied Joppich’s motion for final summary judgment and granted Millis’s motion for partial summary judgment. In May 2001, the trial court rendered a final judgment declaring that the Option Agreement was enforceable, requiring Joppich to sell the property in compliance with the terms of the Option Agreement, and awarding attorney’s fees to Millis.

In the court of appeals, both sides characterized the consideration recited in the Option Agreement as “nominal.” Millis, relying on McKay v. Tally, 220 S.W. 167 (Tex.Civ.App.Amarillo 1920, no writ) and Heard v. Pratt, 257 S.W. 660 (Tex.Civ.App. San Antonio 1923, writ dism’d), asserted:

Where a contract recites the payment of a nominal amount of money as its consideration, the contract is valid, even if the nominal sum identified is not actually paid. The nominal consideration merely creates an obligation to pay such sum, which may be enforced by the other party. The real consideration provided in the Option Agreement was the obligation to pay the ten dollars, and it is of no consequence whether the ten dollars was paid or not.

Joppich acknowledged that “[i]f unpaid nominal consideration without other consideration is sufficient, then the court should overrule [her first issue] challenging the enforceability of a contract for failure or lack of consideration.” Neither Millis nor Joppich cited or otherwise discussed section 87(l)(a) of the Restatement (Second) of Contracts.

In December 2002, the court of appeals reversed and remanded, concluding that “summary judgment for [Millis] was improper.” 96 S.W.3d 614, 617. Because it sustained her first issue, the court of appeals did not address Joppich’s other issues. Id.

In this Court, Millis asserts that “[t]he court of appeals’ holding that failure to deliver the nominal consideration recited in an option contract precludes its enforcement directly conflicts with the modern view reflected in the Restatement (Second) of Contracts.” In response, Jop-pich argues that “[t]he Restatement shows that its view is not the modern view but is in fact the minority view consisting of one and possibly two states.” Joppich does not dispute Millis’s contention, made in both its petition for review and its brief on the merits, that the Option Agreement satisfies section 87(l)(a) of the Restatement (Second) of Contracts, including its requirement that an offer propose an exchange on fair terms within a reasonable time.

II

“[A] promise to give an option is valid if supported by an independent consideration. For example, if a sum of money be paid for the option, the promisee may, at his election, enforce the contract.” Nat’l Oil & Pipe Line Co. v. Teel, 95 Tex. 586, 68 S.W. 979, 980 (1902); see also Restatement (Second) of Contracts § 25 (1981) (“An option contract is a promise which meets the requirements for the formation of a contract and limits the promi-sor’s power to revoke an offer.”).

In addition, under the Restatement (Second) of Contracts, certain promises that lack consideration are enforceable. See Restatement (Second) of Contracts §§ 82-94 (1981); see also 1 Murray, Murray on Contracts § 61 (4th ed. 2001) (“The Restatement 2d expressly adopts the view that a clause reciting nominal consideration in either a guaranty or an option contract should operate as a formalistic validation device, supporting the promise in either type of contract, regardless of the fact that the recited amount was never paid.”); 2 Perillo & Bender, Corbin on Contracts § 5.17 (rev. ed. 1995) (“The Restatement (Second) has taken the position that in the commercially important situations of options and credit guaranties, a promise is made binding by a false recital of consideration.”).

Section 87(l)(a) of the Restatement (Second) of Contracts provides: “An offer is binding as an option contract” if the offer “is in writing and signed by the offeror, recites a purported consideration for the making of the offer, and proposes an exchange on fair terms within a reasonable time.” Restatement (Second) of Contracts § 87(l)(a) (1981). Similarly, section 88(a) provides: “A promise to be surety for the performance of a contractual obligation, made to the obligee, is binding” if the promise “is in writing and signed by the promisor and recites a purported consideration.” Id. § 88(a); see also Beltran v. Groos Bank, N.A., 755 S.W.2d 944, 948 (Tex.App.San Antonio 1988, no writ) (applying section 88(a) to determine whether a written guaranty agreement that contained a fictional recital of a nominal consideration was enforceable).

In the remainder of part II, we will review two United States Supreme Court decisions from the 1800’s and several Texas court decisions from the early 1900⅛ before more closely analyzing section 87(l)(a) of the Restatement (Second) of Contracts.

A

In 1844, the United States Supreme Court addressed whether a written guaranty agreement that contained a fictional recital of a nominal consideration was enforceable:

The fifth point is, that there is no valid consideration to support the guarantee. This is pressed under two aspects; the first is, that the consideration was past and not present; for the letter of credit had been already delivered to J. and A. Lawrence by the agents of the London house. The second is, that the payment of the one dollar is merely nominal and not sufficient to sustain the guarantee, if it had been received; and it is urged that it was not received. As to this last point, we feel no difficulty. The guarantor acknowledged the receipt of the one dollar, and is now estopped to deny it. If she has not received it, she would now be entitled to recover it. A valuable consideration, however small or nominal, if given or stipulated for in good faith, is in the absence of fraud, sufficient to support an action on any parol contract; and this is equally true as to contracts of guarantee as to other contracts. A stipulation in consideration of one dollar is just as effectual and valuable a consideration as a larger sum stipulated for or paid....

Lawrence v. McCalmont, 43 U.S. (2 How.) 426, 452, 11 L.Ed. 326 (1844).

In 1881, the United States Supreme Court relied on Lawrence to resolve another case involving a written guaranty agreement. Davis v. Wells, 104 U.S. 159, 167-68, 26 L.Ed. 686 (1881). The agreement in Davis stated: “ ‘For and in consideration of one dollar to us in hand paid by Wells, Fargo, & Co. (the receipt of which is hereby acknowledged), we hereby guarantee....’” Id. at 160, 26 L.Ed. 686. In concluding that the agreement was enforceable, the Supreme Court stated:

It is not material that the expressed consideration is nominal. That point was made, as to a guarantee, substantially the same as this, in the case of Lawrence v. McCalmont (2 How. 426, 452, 11 L.Ed. 326), and was overruled. Mr. Justice Story said: “The guarantor acknowledged the receipt of the one dollar, and is now estopped to deny it. If she has not received it, she would now be entitled to recover it. A valuable consideration, however small or nominal, if given or stipulated for in good faith, is, in the absence of fraud, sufficient to support an action on any parol contract; and this is equally true as to contracts of guaranty as to other contracts. A stipulation in consideration of one dollar is just as effectual and valuable a consideration as a larger sum stipulated for or paid....”

Id. at 167-68, 26 L.Ed. 686.

In 1902, this Court, in a suit to cancel two oil and gas contracts, assumed without deciding that the recital of a nominal consideration was sufficient to support an option contract:

Each of the contracts in this case purports upon its face to have been executed in consideration of the payment of one dollar; and, though the plaintiff below pleaded that no consideration was paid, there was no evidence that the recitals as to the consideration in the contracts were not true. Whether the recital of “one dollar” — commonly called a nominal consideration — is sufficient to support the contracts, we need not discuss, though there is very high authority for holding that such recital is sufficient for the purpose. Davis v. Wells, 104 U.S. 159, 26 L.Ed. 686. Treating the contracts as if supported by a consideration, the question recurs, can the as-signee of such a contract, or the vendee of the right secured by it, shield himself against the fraud of his assignor in its procurement by showing that he is a purchaser for value, without notice of the fraud?

Nat’l Oil & Pipe Line Co. v. Teel, 68 S.W. at 980.

In March 1920, the Amarillo Court of Civil Appeals, in a suit to cancel an oil and gas contract, discussed in dictum the effect of a fictional recital of a nominal consideration:

The question is also presented by this record that the recitation that $1 was paid as a consideration creates an obligation to pay, if in fact it was not actually paid. It seems, under some of the authorities, such would be an obligation to pay, which may be enforced and will support a contract to lease or convey an interest in land.
“Where a contract recites the payment of $1 as its consideration, it is valid, although the sum named is not actually paid, since it creates an obligation to pay such sum, which may be enforced by the other party.” 13 C.J. § 240, “Contracts,” p. 367.

McKay v. Tally, 220 S.W. 167, 169-70 (Tex.Civ.App.Amarillo 1920, no writ).

In June 1920, the Commission of Appeals considered whether a written release that contained a fictional recital of a nominal consideration was enforceable. Fitts v. Panhandle & S.F. Ry. Co., 222 S.W. 158, 158 (Tex. Comm’n App.1920, judgm’t adopted). The release recited the following consideration: “ ‘An order on the treasurer of said company for $1, the receipt of which is hereby acknowledged,’ and ‘the promise of said company to employ me for one day.... ’ ” Id.

In concluding that the release was unenforceable, the Commission of Appeals stated:

We have the views of the Supreme Court upon the question thus presented, expressed in the following language:
“Since the recited consideration of $1 in the release in this case was not paid, it is our opinion that the release was wholly without consideration. It seems to us that a mere promise to re-employ for one day, paying for the work done for that one day no more than the ordinary or customary rate of wages, conferred, in practical effect, no benefit upon the plaintiff....”

Id. The opinion did not provide a citation for the quotation attributed to this Court. Our historical research of the case file and related journals at the State Archives and an electronic legal search failed to reveal the source of the quotation.

In 1922, the El Paso Court of Civil Appeals, in a suit to cancel an oil and gas contract, summarily concluded that a fictional recital of a nominal consideration precluded enforcement of the contract, stating: “A unilateral contract is valid if supported by an independent consideration, but the testimony of plaintiffs is that the independent consideration of $1 cash recited in this lease was not in fact paid.... ” Gary v. McKinney, 239 S.W. 283, 286 (Tex.Civ.App.El Paso 1922, no writ). In 1924, the Waco Court of Civil Appeals, in a similar case, reached the opposite conclusion:

The consideration named in the lease was sufficient to make a binding contract, whether the $1 named was paid or not. If same was not paid, [the lessor] would have a claim against the company for same. Masterson v. Amarillo Oil Co. (Tex.Civ.App.) 253 S.W. 908; McKay v. Tally (Tex.Civ.App.) 220 S.W. 167; Bost v. Biggers Bros. (Tex.Civ. App.) 222 S.W. 1112.

Silverman v. Emerson, 257 S.W. 612, 613 (Tex.Civ.App.Waco 1924, no writ). Neither court of civil appeals discussed the Commission of Appeals’s Fitts decision.

Before the court of appeals’s decision in this case, no Texas appellate court had decided whether a written option agreement that contains a fictional recital of a nominal consideration is unenforceable for lack of consideration.

B

Section 87(1) of the Restatement (Second) of Contracts provides:

(1) An offer is binding as an option contract if it
(a) is in writing and signed by the offer- or, recites a purported consideration for the making of the offer, and proposes an exchange on fair terms within a reasonable time; or
(b) is made irrevocable by statute.

Restatement (Second) of Contracts § 87(1) (1981).

The official comment to section 87 states:

b. Nominal consideration. Offers made in consideration of one dollar paid or promised are often irrevocable under Subsection (l)(a)....
[A] nominal consideration is regularly held sufficient to support a short-time option proposing an exchange on fair terms. The fact that the option is an appropriate preliminary step in the conclusion of a socially useful transaction provides a sufficient substantive basis for enforcement, and a signed writing taking a form appropriate to a bargain satisfies the desiderata of form. In the absence of statute, however, the bargaining form is essential: a payment of one dollar by each party to the other is so obviously not a bargaining transaction that it does not provide even the form of an exchange.
c. False recital of nominal consideration. A recital in a written agreement that a stated consideration has been given is evidence of that fact as against a party to the agreement, but such a recital may ordinarily be contradicted by evidence that no such consideration was given or expected. See § 218. In cases within Subsection (l)(a), however, the giving and recital of nominal consideration performs a formal function only. The signed writing has vital significance as a formality, while the ceremonial manual delivery of a dollar or a peppercorn is an inconsequential formality. In view of the dangers of permitting a solemn written agreement to be invalidated by oral testimony which is easily fabricated, therefore, the option agreement is not invalidated by proof that the recited consideration was not in fact given. A fictitious rationalization has sometimes been used for this rule: acceptance of delivery of the written instrument conclusively imports a promise to make good the recital, it is said, and that promise furnishes consideration. Compare § 218. But the sound basis for the rule is that stated above.

Id. § 87 cmts. b-c (illustrations omitted).

The illustration following comment c states:

3. A executes and delivers to B a written agreement “in consideration of one dollar in hand paid” giving B an option to buy described land belonging to A for $15,000, the option to expire at noon six days later. The fact that the dollar is not in fact paid does not prevent the offer from being irrevocable.

Id. § 87 cmt. c, illus. 3.

The authors of the national treatises on contracts have generally endorsed section 87(l)(a) of the Restatement (Second) of Contracts. For example, Corbin on Contracts states:

But, even when the dollar was not paid, the option has been sustained. Some courts have estopped the promisor from denying that the dollar was paid. Others have sustained the option by virtue of an implied promise to pay the dollar. The Restatement (Second) carves out two important areas in which the results of these cases [are] duplicated. It makes recital of “a purported” consideration in a signed writing sufficient to bind the promisor in the following two categories of cases: a credit guaranty promise and an option contract.... Unlike the cases mentioned above, the Restatement (Second) does not attempt to obscure its reasoning behind such legal sleights of hand as implied promises and estoppels, but has synthesized those cases into a new doctrine, categorizing guaranty and option contracts— where the formal requisites are met — as enforceable contracts without consideration. The reason for giving special treatment to options and guaranties is their presumptive utility as aneillaries to bargain transactions....
Consideration is designed primarily to protect promisors from their own dona-tive promises. Options, however, are one commercial step in a commercial deal. A number of cases have followed the forthright approach taken by the Restatement (Second). Indeed, it may be urged that the Restatement fails to lead the way to more progressive reform. Having recognized the value of the enforceability of options as commercial devices, it still insists on the fictional recital of a purported consideration. Such fictional charades should not be a part of a mature legal system. Commercial promises such as options and credit guaranties should be enforceable without consideration.

2 Perillo & Bender, Corbin on Contracts § 5.17 (rev. ed.1995) (footnotes omitted); see also 1 Farnsworth, Farnsworth on Contracts § 3.23 (3d ed. 2004) (“The attempt is to make a recital of consideration as effective a formality as was the seal, where options are concerned.”); 1 Murray, Murray on Contracts § 61 (4th ed. 2001) (“Notwithstanding the compelling view of the Restatement 2d, however, most courts hold that, upon proof that the recited amount has not been paid, the promise fails for want of consideration.”); 3 Willi-ston & Lord, A Treatise on the Law of Contracts § 7:23 (4th ed. 1992) (“[T]he drafters ... have recognized that in the context of option contracts the formal recital of consideration, though false and nominal only, serves the useful purpose of facilitating the underlying bargain.”).

In addition, the authors of law review commentary have agreed that the nonpayment of a recited nominal consideration should not preclude enforcement of a written option agreement. See Siprut, Comment, The Peppercorn Reconsidered: Why a Promise to Sell Blackacre for Nominal Consideration Is Not Binding, but Should Be, 97 Nw. U.L.Rev. 1809 (2003); Wess-man, Retraining the Gatekeeper: Further Reflections on the Doctrine of Consideration, 29 Loy. L.A. L.Rev. 713 (1996); Gordon, Consideration and the Commer-ciaNGift Dichotomy, 44 Vand. L.Rev. 283 (1991); Eisenberg, Symposium, The Principles of Consideration, 67 Cornell L.Rev. 640 (1982).

Ill

The position taken by section 87(l)(a) of the Restatement (Second) of Contracts is admittedly the minority position among the limited number of state supreme courts that have addressed the question. See, e.g., Lewis v. Fletcher, 101 Idaho 530, 617 P.2d 834, 835 (1980) (holding that a written option agreement that contains a fictional recital of a nominal consideration is unenforceable for lack of consideration); Berryman v. Kmoch, 221 Kan. 304, 559 P.2d 790, 793 (1977) (same); Am. Handkerchief v. Frannat Realty Co., 17 N.J. 12, 109 A.2d 793, 796-97 (1954) (same); Bard v. Kent, 19 Cal.2d 449, 122 P.2d 8, 10 (1942) (same); Kay v. Spencer, 213 P. 571, 574, 29 Wyo. 382 (1923) (same); Smith v. Wheeler, 233 Ga. 166, 210 S.E.2d 702, 704 (1974) (implying an obligation to pay the recited but unpaid nominal consideration); Real Estate Co. v. Rudolph, 301 Pa. 502, 153 A. 438, 439 (1930) (employing an estop-pel theory to prevent contradiction of a fictional recital of a nominal consideration).

Nevertheless, we are persuaded that the position of the Restatement (Second) of Contracts, which is supported by a well-articulated and sound rationale, represents the better approach. See, e.g., Restatement (Second) of Contracts § 87 cmt. b (1981) (“The fact that the option is an appropriate preliminary step in the conclusion of a socially useful transaction provides a sufficient substantive basis for enforcement, and a signed writing taking a form appropriate to a bargain satisfies the desiderata of form.”); Gordon, Consideration and the Commercial-Gift Dichotomy, 44 Vand. L.Rev. 283, 293-94 (1991) (“Option contracts are related to economic exchanges — transactions based on self-interest, not altruism. Moreover, people expect that option contracts are serious and binding commitments.”) (footnote omitted).

IV

Based on the foregoing analysis, we reverse the court of appeals’s judgment and remand the case to the court of appeals for further proceedings.

Chief Justice JEFFERSON filed a concurring opinion, in which Justice BRISTER joined.

Chief Justice JEFFERSON,

joined by Justice BRISTER, concurring.

Today the Court adopts section 87(l)(a) of the Restatement (Second) of Contracts to hold that an option contract in which consideration is recited, but not paid, is enforceable. But if the Court enforces option contracts containing fictional recitals of consideration, why mandate such recitals at all? Why recognize and require parties to recite “a lie, a sham”? James D. Gordon III, Consideration and the Commercial-Gift Dichotomy, 44 Vand. L.Rev. 283, 294 (1991) (commenting on section 87 of the Restatement (Second) of Contracts); see also John P. Dawson, Gifts and Promises 4 (1980) (criticizing consideration requirement as a “needless hindrance to the processes by which agreement is reached and, being artificial as well as needless, was soon made to' look silly, so that a dollar, a hairpin, or a false recital would do”).

Instead, I agree with the authors of a leading treatise that while the Restatement approach is a step in the right direction, it “fails to lead the way to more progressive reform. Having recognized the value of the enforceability of options as commercial devices, it still insists on the fictional recital of a purported consideration. Such fictional charades should not be part of a mature legal system. Commercial promises such as options and credit guaranties should be enforceable without consideration.” 2 Joseph M. Perillo & Helen Hadjiyannakis Bender, Corbin on Contracts § 5.17 (rev. ed.1995) (footnote omitted); see also id. § 5.17 n. 19 (noting that “undue deference is being paid to fictional recitals and the appropriate solution is that options should not require consideration”). Although I am not prepared to advocate elimination of the consideration requirement in all commercial contracts, I believe it is time to acknowledge that the doctrine serves no justifiable purpose in option agreements.

Typically, courts require consideration to separate binding agreements from unenforceable donative promises. See id'. § 5.17 (rev. ed.1995). But option contracts rarely involve gifts. Generally, options “are one commercial step in a commercial deal.” Id.; see also Gordon, 44 Vand. L.Rev. at 294 (“Offerors typically do not grant options because they intend to make a gift of the option. The offeror usually grants it to induce the offeree to deliberate and to increase the probability that the offeree will accept the offer.”) (footnote omitted); Melvin Aron Eisen-berg, The Principles of Consideration, 67 Cornell L.Rev. 640, 653 (1982) (noting that U.C.C. firm offers are made “not for altruistic motives, but to advance the offer- or’s interests by inducing the offeree to deliberate”). They “are related to economic exchanges — transactions based on self-interest, not altruism.” Gordon, 44 Vand. L.Rev. at 294. Additionally, there is no reason to assume that an option unsupported by consideration is a gift; if the proposed terms are very favorable to the optionor, that alone may justify the option.

Moreover, enforcing option agreements even without consideration comports with the parties’ expectations. “[PJeople expect that option contracts are serious and binding commitments.” Gordon, 44 Vand. L.Rev. at 294. We can safely presume that was the case here. Millis and Joppich entered into a detailed, four-page option agreement, which was signed and notarized. It expressed the parties’ intent to be bound. It was incident to Joppich’s purchase of the lot for $65,000. Joppich .agreed to begin construction within eighteen months. The option included the familiar refrain, “[i]n consideration of the sum of Ten and No/100 ($10.00) Dollars (“Option Fee”) paid in cash by Developer, the receipt and sufficiency of which is hereby acknowledged and confessed,” something the parties likely paid little attention to, until Joppich sought a means to avoid her promise. I agree with the Court that the option should be enforced even though Millis did not actually pay the recited ten dollars. But we should go further and dispense with that recital requirement in option contracts.

This view is hardly novel. For centuries, commentators and courts have advocated the elimination of the consideration requirement from contracts altogether. In eighteenth-century England, Lord Mansfield, Chief Judge of the King’s Bench from 1756 through 1788, urged the enforcement of commercial contracts based on moral obligation rather than consideration. Kevin M. Teeven, Development of Reform of the Preexisting Duty Rule and Its Persistent Survival, 47 Ala. L.Rev. 387, 401 n. 76 (1996). But “the force of precedent surrounding this keystone common law doctrine proved too much to overcome,” and the requirement remained a part of the common law. Id. at 441 n. 314.

In 1925, the National Conference of Commissioners on Uniform State Laws proposed the Uniform Written Obligations Act, drafted by Samuel Williston. Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings 193-215 (1925); Teeven, 47 Ala. L.Rev. at 439 (1996); Anthony J. Pe-trone, Pennsylvania’s Experience with the Uniform Written Obligations Act: Saving Contracts Otherwise Unenforceable for Lack of Consideration, 90 Com. L.J. 571, 572 (1985). That act eliminated consideration as a technical requirement for an enforceable contract. The act provides that “[a] written release or promise hereafter made and signed by the person releasing or promising shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement, in- any form of language, that the signer intends to be legally bound.” Unif. Written Obligations Act § 1, Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings 584 (1925). The act’s “drastic” approach was not widely accepted, however; only Pennsylvania and Utah adopted the act, and Utah subsequently repealed it. Teeven, 47 Ala. L.Rev. at 439.

Instead, courts’ dogged insistence on a formalistic recital remains, tempered only by the creative doctrines they employ to enforce option contracts when the stated consideration is not paid. Thus, “courts have invoked estoppels, promissory and equitable, and have implied promises to save options from the destructive force of the exaggerated impact of consideration doctrine.” Perillo & Bender, Corbin on Contracts § 5.17 (noting that “[s]ome courts have estopped the promisor from denying that the [stated consideration] was paid” and “[ojthers have sustained the option by virtue of an implied promise to pay the dollar”) (footnotes omitted). Instead of engaging in these machinations, courts should take a simpler, more straightforward approach and eliminate the consideration requirement in option contracts.

“Because the consideration requirement [for option contracts] has been imposed by the courts as a matter of common law, the courts are free to discard this requirement. Because courts have traditionally-been unwilling to take this needed step, legislators have stepped in in some jurisdictions and enacted curative legislation.” Perillo & Bender, Corbin on Contracts § 5.17; see also Teeven, 47 Ala. L.Rev. at 441 n. 314 (“Consideration is not required for the formation of a commercial contract under any legal system other than the common law.”). Perhaps this explains the Uniform Commercial Code’s “firm offer” rule, adopted verbatim in Texas in 1966. See Tex. Bus. & Com.Code § 2.205. Section 2.205 eliminates the consideration requirement for some option agreements by sanctioning “firm offers” — enforceable option contracts without any consideration. Id. Under the U.C.C., a “firm offer” is enforceable if it is in writing, states that it is irrevocable, and is signed by the offeror, who is a merchant. Id. “Firm offers” are “not revocable, for lack of consideration” during the stated time — or, if no time is stated, a reasonable time — not to exceed three months. Id. Section 2.205 applies only to transactions in goods, however. Id. §§ 2.102, 2.205. The U.C.C. “firm offer” rule was promulgated to give the business community a means of making options binding even without consideration. 1 William D. Hawkland, Uniform Commercial Code Series § 2-205:1 (1998)(noting that pre-Code law permitted a businessperson to revoke an offer in spite of a promise not to do so if the promise to keep the offer open was not supported by consideration and “[t]he commercial community needed legislation to make firm offers efficacious”). Despite eliminating the consideration requirement, section 2.205 does not seem to have spawned much litigation, having been mentioned in just five published decisions since the Texas Legislature adopted it thirty-eight years ago. See Tubelite v. Risica & Sons, Inc., 819 S.W.2d 801, 803 (Tex.1991); Nelson v. Union Equity Co-operative Exchange, 548 S.W.2d 352, 356 (Tex.1977); Traco, Inc. v. Arrow Glass Co., 814 S.W.2d 186, 188 (Tex.App.-San Antonio 1991, writ denied); Alamo Clay Prods., Inc. v. Gunn Tile Co., 597 S.W.2d 388, 392 (Tex.Civ.App.-San Antonio 1980, writ ref'd n.r.e.); Echols v. Bloom, 485 S.W.2d 798, 800 n. 1 (Tex.Civ.App.Houston [14th Dist.] 1972, writ ref'd n.r.e.); see also Uniform Commercial Code, 59th Leg., R.S., ch. 721, § 2-205, 1965 Tex. Gen. Laws 1, 18. Given Texas’s apparently favorable experience with section 2.205, it seems logical to expand its principles to other types of option contracts.

But perhaps Justice Holmes’s aphorism that “a page of history is worth a volume of logic” applies here. New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921). A rule known only to lawyers and relied on by parties seeking a technicality by which to avoid contractual obligations, consideration in option contracts is a relic, much like the seal of earlier days. Although Texas eliminated the seal requirement in 1858, our courts continue to insist on a formalistic (even if false) recitation of consideration in an option contract that both parties enter into willingly, fully expecting it to be enforceable, and as part of an underlying transaction that is supported by consideration. It is time to put this “overworked shibboleth” to rest. Rye v. Phillips, 203 Minn. 567, 282 N.W. 459, 460 (1938).

For these reasons, I concur in the Court’s judgment but not in its reasoning.

      . In the trial court, Millis made only one argument in support of its motion for partial summary judgment: "The real consideration in this case was the obligation to pay the ten dollars and it is of no consequence whether the ten dollars was paid or not.” In response to Joppich's motion for final summary judgment, Millis argued: "At this point in time, there still remain genuine issues of material fact as to what consideration was actually given for the Option Agreement. Defendants contend that Plaintiff did not only sign the Option Agreement for the right to receive ten dollars, but also signed it in consideration for the right to purchase the property.”
      The court of appeals, in one paragraph, addressed and rejected Millis’s appellate argument that "the property itself, which was the consideration exchanged under the earnest money contract, serves as additional consideration for the option granted within it.” 96 S.W.3d at 617. With regard to that argument, the court of appeals stated: "Based on the merger doctrine, the earnest money contract was superseded by agreements executed at closing. Alvarado v. Bolton, 749 S.W.2d 47, 48 (Tex.1988). At closing, the parties executed the option contract, which recited, 'In consideration of the sum of Ten and No/ 100 ($10.00) Dollars.' Therefore, the option contract did not mention any 'other good and valuable consideration,’ such as the property itself.” Id.

      Because it was not raised in Millis’s motion for partial summary judgment, the argument that the property itself constitutes consideration for the parties' written option agreement should not have been considered by the court of appeals. Moreover, the court of appeals’s three-sentence analysis lacks clarity, and appears to improperly construe and apply the applicable Texas law. See, e.g., Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex.2000) ("[I]nstru-ments pertaining to the same transaction may be read together to ascertain the parties' intent, even if the parties executed the instruments at different times and the instruments do not expressly refer to each other ....”) (citations omitted); Harris v. Rowe, 593 S.W.2d 303, 306-07 (Tex.1979) ("A deed which constitutes only partial performance of the preceding contract does not merge other distinct and unperformed provisions of the contract.”). Accordingly, we specifically disapprove of that portion of the court of appeals’s opinion.

      . Yet another problem with the Restatement approach is that, in addition to mandating a recital of consideration, the Restatement requires that an option be "on fair terms” and that the exchange occur "within a reasonable time.” Restatement (Second) of Contracts § 87(l)(a) (1981). This approach unduly complicates enforcement of option contracts, requiring a factual inquiry regarding fairness of terms and reasonableness of time in each case. See Gordon, 44 Vand. L.Rev. at 294 ("Requiring that the option be in a certain form is too narrow because it relieves people of option contracts that everyone expects to be binding.”). Perhaps this explains why, as the Court notes, "the Restatement ... is admittedly the minority position among the limited number of state supreme courts that have addressed the question.” 154 S.W.3d at 110.

      . Petrone, 90 Com. L.J. at 572.

      . U.C.C. section 2-205 has been adopted by the District of Columbia, the United States Virgin Islands, and every state except Louisiana. 2 Ronald A. Anderson, Anderson on the Uniform Commercial Code § 2-205:2 (3d ed.1997).

      . A merchant is:
      a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.
      Tex. Bus. & Com.Code § 2.104(a).

      . In 2003, the National Conference of Commissioners on Uniform State Laws approved a minor amendment to section 2.205, permitting the firm offer to be made in a "record” rather than a writing. U.C.C. § 2-205 (2003); Lary Lawrence, Lawrence’s Anderson on the Uniform Commercial Code § 2-205:28 (Supp. 2004). "Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. U.C.C. § 2-103(m) (2003). Texas has not yet adopted amended section 2.205. See Tex. Bus. & Com.Code § 2.205.

      . Indeed, Samuel Williston, although he did not disapprove of the U.C.C. rule, advocated a broader approach (perhaps like that of his Uniform Written Obligations Act):

        Section 2-205 proposes to change the existing law of contracts by making binding without consideration an offer stated to be ''firm” or otherwise irrevocable for a period not exceeding three months.... I strongly favor enactment of some such statute .... It is, however, unfortunate that there should be a different rule for contracts for the sale of goods from that governing sales of shares of stock or of land, or indeed for any other offer or promise. It would be better to enact a general statute on the subject than to make this special rule for the sale of goods.
      Samuel Williston, The Law of Sales in the Proposed Uniform Commercial Code, 63 HARV. L. REV. 561, 576-77 (1950) (footnote omitted).

      . "When the seal was in its heyday as a legal formality, use of a sealed instrument would make a gratuitous promise enforceable.” Mark B. Wessman, Retraining the Gatekeeper: Further Reflections on the Doctrine of Consideration, 29 Loy. L.A. L.Rev. 713, 833 (1997).

      . See Act approved Feb. 2, 1858, 7th Leg., R.S., ch. 78, § 1, 1858 Tex. Gen. Laws 96, 96, reprinted in 4 H.P.N. Gammel, The Laws of Texas 1854-1861, at 968, 968 (Austin, Gammel Book Co. 1898).


source: Caselaw Access Project

author: Justice OWEN

license: Public Domain

text:
    In re Adel SHESHTAWY, Relator.
    No. 03-0766.
    Supreme Court of Texas.
    Argued Nov. 19, 2003.
    Decided Dec. 31, 2004.

      Scott Ramsey, Houston, for relator.
    Shawn Casey, James C. Faulkner, Houston, for respondent.
   Justice OWEN

delivered the opinion of the Court.

In this habeas corpus proceeding, we hold that both the court of appeals and the trial court had authority to enforce a final judgment awarding spousal maintenance while that judgment was pending on appeal and was not superseded. Accordingly, the trial court had jurisdiction to issue the commitment order. However, in the appeal of the underlying divorce decree, the court of appeals has since reversed the award of spousal maintenance, which precludes further enforcement of the civil contempt provisions in the commitment order. The criminal provisions of the commitment order allow the party held in contempt to obtain probation by paying the spousal maintenance ordered by the trial, and therefore, the criminal sentence is affected by the reversal of the spousal maintenance award. Accordingly, we vacate the commitment order, and we grant habeas corpus relief. The trial court, however, retains discretion to impose criminal contempt for violation of its unsu-perseded order pending appeal.

I

A final judgment granting a divorce between Adel and Amal Sheshtawy directed Adel to pay Amal $600 per month for thirty-six months as post-divorce spousal maintenance pursuant to section 8.002(1) of the Texas Family Code. The trial court found that Adel Sheshtawy had been convicted of a criminal offense that also constituted an act of family violence. The criminal conviction was upheld on appeal.

Adel Sheshtawy did not make the first three monthly payments, and Amal Shesh-tawy instituted proceedings to enforce the judgment in the trial court while that court still had plenary power. The motion to enforce had not been ruled upon by the trial court when Adel Sheshtawy filed a notice of appeal. Adel Sheshtawy did not supersede the final judgment. Amal Sheshtawy moved for temporary orders pending appeal, seeking legal fees for defending the appeal. She did not seek temporary spousal support pending appeal, as she could have doné pursuant to section 6.709 of the Family Code. The trial court’s judgment already provided for spousal maintenance and that judgment had not been superseded.

On appeal, Adel Sheshtawy challenged several aspects of the divorce decree, including the award of spousal maintenance. While the appeal was proceeding, the motion for contempt remained pending in the trial court, and the trial court set a hearing. Adel Sheshtawy sought writs of prohibition and mandamus to compel the trial court to stay enforcement of the divorce decree pending appeal, asserting that only a court of appeals has jurisdiction to enforce a divorce decree once an appeal has been perfected. The court of appeals denied. relief, holding that the trial court retained jurisdiction to enforce the spousal maintenance order while the appeal was pending. The trial court proceeded to hear Amal Sheshtawy’s motion for enforcement. Adel Sheshtawy had made no spousal maintenance payments, and the trial court found him in contempt for failing to make nine monthly payments, totaling $5,400. The trial court ordered liquidation of a $3,000 cash bond that Adel Sheshtawy had posted when a capias had previously been issued and credited the bond against the arrearage.

The trial court ordered that Adel Shesh-tawy be punished for two counts of criminal contempt and ordered him confined for 180 days for each count, with those sentences to be served concurrently. The trial court also ordered confinement for civil contempt, ordering that Sheshtawy be incarcerated upon completion of the criminal contempt sentence from day to day until he paid the $2,400 spousal maintenance arrearage. The commitment order further provided that the criminal and civil contempt confinements could be suspended and probated if Adel Sheshtawy paid all outstanding spousal maintenance and the attorney fees Amal Sheshtawy incurred prosecuting the enforcement action.

Adel Sheshtawy was taken into custody and had spent two months confined in jail when he sought a writ of habeas corpus from the court of appeals. That request for relief was denied. Adel Sheshtawy then sought habeas corpus relief from this Court, and we released him on bond pending consideration of the merits.

While the habeas corpus petition has been pending in this Court, the court of appeals has decided the issues presented in Adel Sheshtawy’s appeal from the divorce decree. Among other holdings, the court of appeals reversed and rendered the award of spousal maintenance based on section 8.058 of the Family Code, which provides that “it is presumed that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in ... seeking suitable employment ... or ... developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending.” The court of appeals concluded that Amal Sheshtawy had not presented any evidence to rebut this presumption. Both Adel and Amal Sheshtawy filed petitions for review in this Court, challenging the court of appeals’ decision in the divorce case, and today, in a separate order, we have denied those petitions. The court of appeals’ judgment in the divorce proceeding is now final.

For the reasons considered below, habe-as corpus relief is granted.

II

As a general proposition, a writ of habeas corpus will issue if the commitment order is void because it was beyond the court’s power to issue it. Adel Sheshtawy contends that the trial court’s contempt order is void because the court of appeals had exclusive jurisdiction to enforce the divorce decree by contempt once he perfected his appeal. Adel Sheshtawy relies on this Court’s decisions in Ex parte Boniface and Schultz v. Fifth Judicial District Court of Appeals at Dallas in support of his position.

In denying Adel Sheshtawy’s petition for writs of prohibition and mandamus, the court of appeals concluded that the trial court retained jurisdiction to enforce its spousal maintenance award pending appeal, citing section 8.059 of the Family Code, Sullivan v. Sullivan, and Bivins v. Bivins, among other authorities. In Sullivan and Bivins, the courts of appeals concluded that trial courts retain the authority to enforce child support payments by contempt during an appeal, although no provision in the Family Code expressly addresses that question. In denying Sheshtawy’s petition for writs of prohibition and mandamus, the court of appeals concluded that Boniface and Schultz have been “abrogated” by “amendments to the Texas Family Code,” “at least in part, with respect to family law enforcement proceedings involving such matters as spousal and child support.”

The Family Code provides in section 8.059 that a court may enforce a spousal maintenance order by contempt, but it is silent as to what court may do so while an appeal is pending unless the spousal support has been granted under section 6.709, which allows a trial court to grant temporary spousal support during an appeal. Section 6.709 expressly provides that temporary support awarded for the duration of an appeal may be enforced by a trial court pending appeal. The Code does not contain a similar provision in section 8.059, which deals with spousal support generally and is entitled “Enforcement of Maintenance Order.”

But nothing in the Family Code suggests that a final judgment awarding spousal maintenance,. other than temporary support pending appeal, should be accorded any different effect than any other final judgment that has not been superseded pending appeal. This Court recently held in In re Crow-Billingsley Air Park, Ltd. that when a final judgment is not superseded, not only does a trial court have “jurisdiction to hear the motion to enforce its final judgment, despite the fact that the judgment ha[s] been appealed,” but “[a] trial court has an affirmative duty to enforce its judgment.” In that case a trial court had signed a final judgment ordering a zoning committee to hold an election. A motion to enforce that judgment was filed, but before the trial court heard the motion, the final judgment was appealed. The trial court dismissed the enforcement proceeding, concluding it had no jurisdiction to proceed pending appeal, even though the judgment had not been superseded. We granted mandamus relief, concluding that “[a] party is entitled to mandamus relief to vacate an order that wrongly denies a prevailing party’s attempt to enforce an unsuperseded judgment.”

More than forty years ago, in Ex parte Preston, this Court similarly held that a trial court could proceed to enforce its unsuperseded contempt order that was part of a final judgment while that judgment was on appeal. Preston was a divorce case in which the trial court found the husband in contempt and in the final judgment, ordered him confined for three days and thereafter until he paid $10,000 to the clerk of the court for the use and benefit of his wife. In denying habeas corpus relief, this Court held “[t]he fact that the case is on appeal without any showing of a supersedeas bond would, if anything, make it more imperative that the rights of Mrs. Preston be protected in this manner.” The Court did say, however, that Mrs. Preston “would hardly be enti-tied” to possession of the money until the appeal was decided.

The conclusion in Crow-Billingsley and Preston that a trial court retains authority during an appeal to enforce a final judgment that has not been superseded is consistent with earlier decisions of this Court in Ex parte Hodges and Ex parte Lohmuller both of which held that a trial court could award temporary alimony pending final disposition and could enforce that award by contempt notwithstanding a pending appeal of the final divorce decree. Similarly, this Court held in Ex parte Scott that a trial court could enforce an order awarding temporary alimony by contempt during the pendency of an interlocutory appeal. In Scott and Lohmuller this Court relied on statutes that empowered the trial court to award a wife income during the pendency of a divorce suit, former articles 4637 and 2986, respectively. Notably, neither statute expressly mentioned appeals, the trial court’s jurisdiction pending appeal, nor the power of a trial court to hold a noncompliant husband in contempt. But this Court concluded that because the statutes allowed the trial court to award support to a spouse during the pendency of the suit, the nature of the power to award interim support included the power to issue and enforce contempt orders. Another decision of this Court went so far as to say that when a trial court awarded temporary alimony pending an appeal under former article 4637, that award not only could be enforced by contempt, it was not superseded by a superse-deas bond.

But our decisions have not been uniform regarding a trial court’s authority to enforce a judgment or order while an appeal is pending. Most notably, in 1983 this Court held in Ex parte Boniface that while a final judgment directing a husband to make monthly retirement benefit payments to the wife was on appeal, the trial court did not have jurisdiction to enforce that award, even though the judgment had not been superseded. Boniface held that only the court of appeals had jurisdiction to enforce the judgment and to punish by contempt.

Boniface recited that it was following decisions regarding temporary injunctions, concluding “[tjhere is no rational basis for applying a different rule to appeals from temporary injunctions and appeals from final judgments, as here.” Boniface cited Ex parte Travis, Ex parte Werblud, Ex parte Duncan, and Ex parte Kimbrought. But none of these decisions stands for the propositions set forth in Boniface.

In Travis the trial court had entered a temporary injunction regarding the transportation and handling of crude oil. While that injunction was on interlocutory appeal, the trial court held the parties in contempt for violating the temporary injunction. This Court expressly declined to grant habeas corpus relief. The Court reasoned that a habeas corpus proceeding is a collateral remedy, and “its function is not to supersede a prompt and adequate and more direct remedy by appeal.” Travis did not hold that a trial court lacks authority to enforce an order or judgment pending appeal by contempt. It held only that an appellate court is fully armed with authority in a direct appeal to protect its own jurisdiction and the subject matter of the appeal. This is a familiar principle.

However, some of the discourse in Travis seems to have been misconstrued in later decisions, including Boniface. Travis noted that as a general proposition, the perfection of an appeal “ ‘terminates the authority of the lower court pending the appeal....’ ” It also said that when a temporary injunction is on appeal, the appellate court has the exclusive power to determine the validity or invalidity of the temporary injunction and to compel obedience pending appeal:

After the jurisdiction of the Appellate Court attached, it alone was clothed with the power to adjudicate the validity or invalidity of the temporary injunction and to exercise the discretion involved in compelling obedience to the injunction pending the appeal, as well as to enforce its own final judgment, unless or until such judgment was subjected to review by a higher court. The district court could exercise no such authority while power to consider and determine these very matters lay exclusively in a higher court.

This paragraph appeared in a lengthy discussion of an appellate court’s authority to protect and enforce its own jurisdiction, which included a reference to former article 1823. That statute, similar to current Government Code section 22.221(a), provided: “Said courts and the judges thereof may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.” The discussion in Travis of an appellate court’s authority to protect its own jurisdiction was immediately followed by a lengthy discussion of habeas corpus. Among the principles considered was that if a trial court had no jurisdiction to enter a temporary injunction that was to remain in force pending an appeal, a court of appeals could order that no further proceedings occur in the trial court if those proceedings conflicted with the appellate court’s jurisdiction. Accordingly, Travis held only that a court of appeals has adequate authority in the direct appeal of a temporary injunction to protect its jurisdiction. It did not hold that the trial court’s order of contempt was void for want of jurisdiction because an appeal was pending. To the contrary, as already indicated, this Court expressly declined to grant habeas corpus relief in Travis.

We note that our current rules of appellate procedure provide that during an interlocutory appeal, “only the appellate court in which the appeal is pending may enforce the order. But the appellate court may refer any enforcement proceeding to the trial court” to hear evidence and make recommendations. There are no similar restrictions on a trial court’s authority pending appeal of a final judgment. Instead, we have detailed rules for superseding a final judgment.

In Duncan, also cited in Boniface, the motion for contempt was filed, heard, and granted in the court of civil appeals.' In the subsequent habeas corpus proceeding in this Court, we held only that the court of appeals had jurisdiction to issue all writs necessary to enforce its jurisdiction, including contempt orders. Duncan did not hold that the trial court was ousted of jurisdiction to enforce an unsuperseded final judgment.

Werblud quoted the passage from Travis that said, “After the jurisdiction of the Appellate Court attached, it alone was clothed with the power to adjudicate the validity or invalidity of the temporary injunction and to exercise the discretion involved in compelling obedience to the injunction pending appeal.” As discussed above, the context of this passage in Travis does not support the proposition that a trial court has no authority to hold a party in contempt while a final judgment that has not been superseded is pending on appeal, and Werblud did not hold that a trial court’s authority is so restricted. As in Duncan, the contempt proceedings in Werblud were filed and conducted in the court of civil appeals, and this Court held that the appellate court had contempt powers. The Werblud opinion also said that when there is a factual dispute regarding an alleged contempt of court, a court of appeals may conduct its own hearing but that the “preferable” course was to refer the evidentiary hearing to the trial court. It did not hold that only an appellate court may issue a contempt order when a judgment is not superseded pending appeal.

Kimbrough, cited in Boniface, did say that “even if the judgment had not been superseded, the contempt, if any, committed after the appeal had been perfected would have been punishable only by the Court of Civil Appeals.” But in Kim-brough, a final judgment granting a permanent injunction had been superseded on appeal. The operative holding of this Court was that “where the provisions of a permanent injunction are suspended on appeal, by the filing of the proper superse-deas bond, persons affected thereby are not required to observe its orders, and cannot be punished in contempt for disobedience thereof.”

Travis and Werblud were also cited in In re Gabbai for the proposition that “while a case is on appeal, the appellate court has exclusive jurisdiction to enforce the orders at issue in the appeal, regardless of whether the alleged contempt occurred before or after the appellate court acquired jurisdiction.” But here again, this statement was not necessary to the actual holding. In Gabbai, the trial court had ordered a husband to execute deeds and assignments as part of a divorce decree. He refused to do so, and on appeal, the court of appeals advised him that it would dismiss his appeal unless he filed a supersedeas bond or executed the required documents and released a lis pendens he had filed. He did not fully comply, and the court of appeals dismissed his appeal. The trial court then held him in contempt not only for failing to execute deeds and assignments, but also for failing to file a supersedeas bond and release the lis pen-dens as ordered by the court of appeals. We held in the subsequent habeas corpus proceeding that the trial court had the authority to enforce its own decree by contempt after the appeal was dismissed but did not have authority to punish for violating requirements that were contained only in the court of appeals’ order when the court of appeals had already imposed the punishment of dismissal. “The court of appeals specified and imposed its punishment for relator’s failure to comply with its order: dismissal of the appeal. Under these circumstances, the trial court had no authority to further punish relator for violating the requirements the court of appeals imposed.”

In Ex parte Browne, this Court’s misstatement of the holding in Werblud was similarly unnecessary to the actual holding in Browne. We said, “In Ex parte Werblud, ... we held that the court of civil appeals is the one charged with the trial and disposition of contempt proceedings for violations of orders during an appeal to that court.” But the actual holding in Browne was that the trial court had the authority to hold a party in contempt when the contempt hearing was held after the court of appeals dismissed that party’s appeal and the party had violated the trial court’s injunction after the notice of appeal was filed but before the record was filed in the court of civil appeals. We were not presented with a contempt order that was issued by a trial court during the pendency of a fully perfected appeal.

This Court, however, squarely held in Schultz v. Fifth Judicial District Court of Appeals at Dallas that only a court of appeals has contempt power when “the validity of the order alleged to have been violated is itself in issue in the appeal” and the order is “in the nature of an injunction.” There, a final default judgment had been entered in favor of a bank against Schultz based on his guarantee of a note, and that judgment was not appealed. The trial court subsequently signed a turnover order directing Schultz to turn over his paychecks as he received them. He appealed that order and filed a super-sedeas bond. After fifing the bond, he failed to turn over his next paycheck, and the bank’s receiver filed a motion for leave to file a contempt motion in the court of appeals. The court of appeals denied leave to file that motion, saying “[t]he trial court retains jurisdiction to enforce by contempt its judgments and orders in aid of execution, notwithstanding the perfection of an appeal.” But this Court disagreed, holding that “the appellate court alone is vested with jurisdiction to enforce the injunc-tive provisions by contempt.” We said that a court of appeals may refer “the fact finding burden” to the trial court, “but the appellate court where the appeal is pending must exercise jurisdiction to actually issue the contempt judgment.” This Court then said, “The fact that a superse-deas bond has or has not been filed does not affect the vesting of exclusive jurisdiction in the appellate court.” We conditionally granted a writ of mandamus directing the court of appeals to withdraw its order declining to take jurisdiction of the motion for contempt. The authorities cited for the holding in Schultz were Boniface, Werblud, Duncan, Travis and Kimbrough. Schultz did note that “[s]ome courts have held that in certain support and other ‘injunctive’ type orders under the Family Code, the legislature has provided that contempt jurisdiction remains in the trial court.... Such special Family Code provisions have no application in this case.”

In examining our decisions, particularly Boniface and Schultz, we are unable to discern a compelling reason for withdrawing a trial court’s authority to enforce a final judgment pending appeal when that judgment has not been superseded or stayed and no statute or rule of procedure removes the trial court’s authority. “A court’s contempt power does not depend on statutory authority.... [It] is an inherent power that is an essential element of judicial independence and authority.” A trial court is free to aid execution while an unsuperseded judgment is on appeal. It is illogical to deny a trial court the power of contempt as a tool in enforcing such judgments when contempt is an otherwise permissible exercise of a court’s authority. Even decisions that indicated only a court of appeals should issue contempt orders when an appeal is pending said that the preferable procedure is to refer the fact-finding process to the trial court. It makes little sense to say that a trial court has factfinding authority but not decisional authority. Moreover, a trial court may frequently be in a position to act more expeditiously than a court of appeals. And allowing a trial court to proceed directly with adjudication of a motion for contempt eliminates the delay of awaiting a referral order from a court of appeals. As the court of appeals concluded in Bivins, allowing proceedings directly in the trial court is a matter of “practicality and common sense.”

An appellate court still retains the overarching power to stay any actions of a trial court, including contempt proceedings, that may interfere with its jurisdiction or the subject matter of the appeal. Accordingly, we hold that when a final judgment has not been superseded or stayed pending an appeal, either the trial court or the court of appeals may entertain a motion for contempt. If the motion is filed in a court of appeals, it remains the better practice to refer that motion to the trial court for hearing and factfinding.

In this case, there is no statute or rule of procedure that forecloses a trial court from enforcing a spousal maintenance award that is part of a final decree. Since 1981, statutes have expressly provided that when temporary support is awarded pending appeal of a divorce decree, the trial court retains jurisdiction to enforce the support order by contempt. We do not view the Legislature’s failure to make a similar provision for spousal maintenance for a stated term as indicating that the Legislature intended to withdraw a trial court’s authority to enforce by contempt an unsuperseded final judgment that requires payment of spousal maintenance. The trial court in this case had authority to issue an order of contempt.

Ill

While Adel Sheshtawy’s habeas corpus petition has been pending in this Court, the court of appeals has decided his appeal from the divorce decree. The court of appeals held that Amal Sheshtawy “failed to provide any evidence to rebut the presumption that spousal maintenance was unwarranted, and the trial court abused its discretion in ordering spousal maintenance in the divorce decree.” The court of appeals therefore reversed the trial court’s award of spousal maintenance. As mentioned above, we have denied both Adel and Amal Sheshtawy’s petitions for review, and the court of appeals’ decision denying spousal maintenance to Amal is thus final.

The trial court punished Adel Sheshtawy for two counts of criminal contempt by ordering his incarceration for two 180-day sentences, to be served concurrently. At the conclusion of the criminal contempt sentence, the court ordered Adel Shesh-tawy to be further incarcerated day to day until $2,400 in spousal maintenance arrear-ages has been paid. The court’s commitment order also provides that both the criminal and civil contempt sentences can be suspended and probated upon immediate payment of the spousal maintenance arrearages and Amal Sheshtawy’s attorney’s fees. By the time this Court ordered Adel Sheshtawy released on bond, he had served most, but not all, of his criminal contempt sentence.

There are differences between civil and criminal contempt:

The paradigmatic coercive, civil contempt sanction, as set forth in Gompers [v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911) ], involves confining a contemnor indefinitely until he complies with an affirmative command such as an order “to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance.” Imprisonment for a fixed term similarly is coercive when the contemnor is given the option of earlier release if he complies. In these circumstances, the contemnor is able to purge the contempt and obtain his release by committing an affirmative act, and thus “ ‘carries the keys of his prison in his own pocket.’ ”
By contrast, a fixed sentence of imprisonment is punitive and criminal if it is imposed retrospectively for a “completed act of disobedience,” such that the contemnor cannot avoid or abbreviate the confinement through later compliance .... When a contempt involves the prior conduct of an isolated, prohibited act, the resulting sanction has no coercive effect. “[T]he defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense.”
This dichotomy between coercive and punitive imprisonment has been extended to the fíne context. A contempt fine accordingly is considered civil and remedial if it either “coerce[s] the defendant into compliance with the court’s order, [or] ... compensate^] the complainant for losses sustained.”

The reversal of the spousal maintenance award means that the trial court’s order directing that Adel Sheshtawy be incarcerated for civil coercive contempt until he pays spousal maintenance of $2,400 cannot be enforced because there is no longer an order with which he is to comply. However, “[violations of an order are punishable as criminal contempt even though the order is set aside on appeal, or though the basic action has become moot.” A plurality of this Court recognized an exception when the trial court’s order unconstitutionally restrained speech. But that exception is not applicable here.

The commitment order states that the criminal contempt sentence is punitive, but the order expressly allows Adel Shesh-tawy to probate his criminal contempt sentence by paying the spousal maintenance arrearages and Amal Sheshtawy’s attorney’s fees. The sentence imposed on Adel Sheshtawy can no longer be probated in light of the court of appeals’ judgment. This effectively imposes a different and harsher criminal penalty than the trial court’s commitment order as written. The commitment order is therefore vacated in its entirety, but without prejudice to further criminal contempt proceedings for violations of the court’s order before it was reversed by the court of appeals.

Accordingly, we grant habeas corpus relief. Relator remains discharged.

Justice BRISTER did not participate in the decision.

      . Sheshtawy v. Sheshtawy, 150 S.W.3d 772, 777 (Tex.App.-San Antonio 2004, pet. denied).

      . TEX. FAM. CODE § 8.002(1).

      . Sheshtawy v. State, No. 14-01-00744-CR, 2002 WL 959471, at *1 (Tex.App.-Houston [14th Dist.] May 9, 2002, pet. ref'd) (not designated for publication).

      . Adel Sheshtawy had filed a request for findings of fact and conclusions of law, and a motion to modify, reform or correct the judgment. See generally Tex.R. Civ. P. 329b; Tex. R.App. P. 26.1(a).

      . TEX. FAM. CODE § 6.709.

      . In re Sheshtawy, No. 14-03-00444-CV, 2003 WL 1922869, at *1 (Tex.App.-Houston [14th Dist.] Apr. 22, 2003, orig. proceeding) (mem.op.) (per curiam).

      . In re Sheshtawy, No. 14-03-00808-CV, 2003 WL 21804272, at *1 (Tex.App.-Houston [14th Dist.] Aug. 7, 2003, orig. proceeding) (mem.op.) (per curiam).

      . Sheshtawy v. Sheshtawy, 150 S.W.3d 772, 777 (Tex.App.-San Antonio 2004, pet. denied).

      . Id. at 777.

      . TEX. FAM. CODE § 8.053.

      . Sheshtawy v. Sheshtawy, 150 S.W.3d at 111.

      . Supreme Court Case No. 04 — 1017.

      . Ex parte Gorena, 595 S.W.2d 841, 843 (Tex.1979).

      . 650 S.W.2d 776, 778 (Tex.1983).

      . 810 S.W.2d 738, 741 (Tex.1991).

      . In re Sheshtawy, No. 14-03-00444-CV, 2003 WL 1922869, at *1 (Tex.App.-Houston [14th Dist.] Apr. 22, 2003, orig. proceeding) (mem.op.) (per curiam).

      . TEX. FAM. CODE § 8.059.

      . 719 S.W.2d 239 (Tex.App.-Dallas 1986, writ denied).

      . 709 S.W.2d 374 (Tex.App.-Amarillo 1986, no writ).

      . Sullivan, 719 S.W.2d at 240; Bivins, 709 S.W.2d at 374-75.

      . In re Sheshtawy, 2003 WL 1922869, at *1.

      . TEX. FAM. CODE § 8.059(a) ("The court may enforce by contempt the court’s maintenance order or an agreement for the payment of maintenance voluntarily entered into between the parties and approved by the court.”).

      . Id. § 6.709(b).

      . Id. ("The trial court retains jurisdiction to enforce a temporary order under this section unless the appellate court, on a proper showing, supersedes the trial court's order.”).

      . Id. § 8.059.

      . 98 S.W.3d 178, 179 (Tex.2003).

      . Id.

      . Id.

      . 162 Tex. 379, 347 S.W.2d 938, 943 (1961).

      . Id.

      . Id.

      . 130 Tex. 280, 109 S.W.2d 964, 965 (1937).

      . 103 Tex. 474, 129 S.W. 834, 834-35 (1910).

      . 133 Tex. 1, 123 S.W.2d 306, 310 (1939).

      . Id.; 129 S.W. at 834.

      . Former TEX. REV. CIV. STAT. art. 4637 (1925), codified by Act of June 2, 1969, 61st Leg., R.S., ch. 888, § 3.59, 1969 Tex. Gen. Laws 2707, 2724 (as amended), recodified by Act of April 3, 1997, 75th Leg., R.S., ch. 7, § 1, 1997 Tex. Gen. Laws 8, 30 (former art. 4637) (prior version at PASCHALS ANN. DIGEST, 5th ed., art. 3456 (Laws of Tex. Vol. 1, p. 567)) (current version at TEX. FAM. CODE § 6.502).

      . Act of Jan. 6, 1841, 5th Congress, R.S., § 8, 1841 Repub. Tex. Laws 19, 21, reprinted in 2 H.P.N. GAMMEL, THE LAWS OF TEXAS 1822-1897, at 483, 485 (Austin, Gammel Book Co. 1898) (former art. 2986).

      . Former art. 4637 ("If the wife, whether complainant or defendant, has not a sufficient income for her maintenance during the pen-dency of the suit for a divorce, the judge may, either in term time or in vacation, after due notice, allow her a sum for her support in proportion to the means of the husband, until a final decree shall be made in the case.”); former art. 2986 ("[I]f the wife, whether complainant or defendant, has not sufficient income for her maintenance during the pen-dency of the suit for a divorce, the judge shall allow her a sum for her support proportional to the means of the husband, until a final decree shall be made in the case.”).

      . Scott, 123 S.W .2d at 310; Lohmuller, 129 S.W. at 835.

      . Ex parte Kollenborn, 153 Tex. 350, 269 S.W.2d 339, 339 (1954). The Family Code now expressly provides that a trial court retains jurisdiction to enforce temporary spousal support awarded pending an appeal unless "on a proper showing,” an appellate court supersedes the trial court’s order. TEX. FAM. CODE § 6.709(b) ("The trial court retains jurisdiction to enforce a temporary order under this section unless the appellate court, on a proper showing, supersedes the trial court's order.”).

      . 650 S.W.2d 776, 778 (Tex.1983).

      . Id.

      . Id.

      . 73 S.W.2d 487 (Tex.1934).

      . 536 S.W.2d 542 (Tex.1976).

      . 127 Tex. 507, 95 S.W.2d 675 (1936).

      . 135 Tex. 624, 146 S.W.2d 371 (1941).

      . 73 S.W.2d at 488.

      . Id. at 489.

      . See, e.g., Richards v. League of United Latin Am. Citizens, 863 S.W.2d 449, 449 (Tex.1993) (per curiam); Dallas Morning News v. Fifth

        Court of Appeals, 842 S.W.2d 655, 657-58 (Tex.1992).

      . Travis, 73 S.W.2d at 489 (quoting 3 TEX. JUR. § 262).

      . Id.

      . Act of Apr. 13, 1892, 22nd Leg., 1st C.S., ch. 15, § 6, 1892 Tex. Gen. Laws 25, 26, reprinted in 10 H.P.N. GAMMEL, THE LAWS OF TEXAS 1822-1897, 389, 390 (Austin, Gammel Book Co. 1898) (former art. 1823).

      . TEX. GOV’T CODE § 22.221(a) ("Each court of appeals or a justice of a court of appeals may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court.”).

      . Act of Apr. 13, 1892, 22nd Leg., 1st C.S., ch. 15, § 6, 1892 Tex. Gen. Laws 25, 26.

      . Travis, 73 S.W.2d at 490.

      . TEX. R. APP. P. 29.4.

      . See, e.g., TEX. R. APP. P. 24.1, 24.2.

      . Ex parte Duncan, 127 Tex. 507, 95 S.W.2d 675 (1936).

      . Ex parte Boniface, 650 S.W.2d 776, 778 (Tex.1983).

      . Duncan, 95 S.W.2d at 679-80.

      . Ex parte Werblud, 536 S.W.2d 542 (Tex.1976).

      . Id. at 544 (quoting Ex parte Travis, 123 Tex. 480, 73 S.W.2d 487, 489 (1934)).

      . Id.

      . Id. at 544-45.

      . Ex parte Kimbrough, 135 Tex. 624, 146 S.W.2d 371 (1941).

      . Ex parte Boniface, 650 S.W.2d 776, 778 (Tex.1983).

      . Kimbrough, 146 S.W.2d at 372.

      . Id.

        . 968 S.W.2d 929, 931 (Tex.1998) (citing Ex parte Werblud, 536 S.W.2d 542, 544 (Tex.1976), and Ex parte Travis, 123 Tex. 480, 73 S.W.2d 487, 488-89 (1934)).

      . Id.

      . Id.

      . 543 S.W.2d 82 (Tex.1976).

      . Id. at 86 (citing Werblud, 536 S.W.2d at 544).

        . Id.

      . 810 S.W.2d 738, 740 (Tex.1991).

      . Id. at 739 (quoting the court of appeal’s order).

      . Id. at 740.

      . Id. at 741.

      . Id.

      . Id.

      . 650 S.W.2d 776 (Tex.1983).

      . 536 S.W.2d 542 (Tex.1976).

      . 127 Tex. 507, 95 S.W.2d 675 (1936).

      . 73 S.W.2d 487 (Tex.1934).

      . 135 Tex. 624, 146 S.W.2d 371 (1941).

      . Schultz v. Fifth Judicial Dist. Court of Appeals at Dallas, 810 S.W.2d 738, 740 n. 9 (Tex.1991).

      . Ex parte Gorena, 595 S.W.2d 841, 845 (Tex.1979).

      . See, e.g., Ex parte Werblud, 536 S.W.2d 542, 544-45 (Tex.1976).

      . Bivins v. Bivins, 709 S.W.2d 374, 376 (Tex.App.-Amarillo 1986, no writ).

      . TEX. GOV'T CODE § 22.221(a) ("Each court of appeals or a justice of a court of appeals may issue a writ of mandamus and all other writs necessary to enforce the jurisdiction of the court.”); id. § 22.002 (outlining the Supreme Court's mandamus and writ authority).

      . TEX. FAM. CODE §§ 6.502(a)(2), 6.506, 6.709; Act of May 31, 1981, 67th Leg., R.S., ch. 711, § 2, 1981 Tex. Gen. Laws 2707, 2724 (as amended), repealed by Act of Apr. 3, 1997, 75th Leg., R.S., ch. 7, § 3, 1997 Tex. Gen. Laws 8, 43 (former TEX. FAM. CODE § 3.58).

      . Sheshtawy v. Sheshtawy, 150 S.W.3d 772, 777 (Tex.App.-San Antonio 2004, pet. denied); see also TEX. FAM. CODE § 8.004 ("[I]t is presumed that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in: (1) seeking suitable employment; or (2) developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending.”).

        . Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828-29, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) (quoting Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911)) (citations omitted).

      . United States v. United Mine Workers of Am., 330 U.S. 258, 294, 67 S.Ct. 677, 91 L.Ed. 884 (1947) (citations omitted).

      . Ex parte Tucci, 859 S.W.2d 1, 2 (Tex.1993).