Texas ‘mutual combat’ law allows settling scores with fists, or until serious injury

Fort Worth Star-Telegram
DAVID MONTESINO
January 20, 2023, 9:30 AM

Ever wondered if two people in Texas can duke it out without worrying about legal consequences? Of course they can.

This is Texas.

Mutual combat, or consent to do battle, is an affirmative defense in assault and aggravated assault cases in the Lone Star State. Washington is the only other state in the union that allows this.

“Most people are aware that it is illegal to punch someone,” Prosper criminal defense attorney Jerry Tidwell Jr. writes on his website. “But did you know that Texas law actually allows people to agree to mutual combat? In effect, Texas law allows two people to fight and injure each other.”

To a certain point.

Infliction of serious bodily injury nullifies the exemption, and no weapons are allowed. Gang initiations also makes the defense moot. Consent must be given with a sound mind, and not by force, threats and intimidation.

‘It’s a real thing in Texas!’

In a tiktok video by attorney Jesse Hernandez, he declares: “Mutual combat! It’s a real thing in Texas!” Hernandez then explains the basic principles of the law.

“In the state of Texas, two parties can agree to fight and it is not a crime,” he said.

A reddit thread by r/todayilearned on mutual combat drew a robust crowd to comment.

“TIL that Texas still has a mutual combat law. This means that dueling is still legal according the Texas penal code. The law states that any two individuals who feel the need to fight can agree to mutual combat through a signed, verbal or implied communication and have at it (fists only, however),” the original post reads.

A mix of serious and cheeky comments followed:

“This law actually kept a friend of mine from being arrested after a fight with his brother. The brother told the police officer that he was willing to agree that that’s what it was and that was that,” one comment read.

“It’s time to d-d-d-d-ddddddduel” wrote another.

The challenge was quickly accepted: “Challenge accepted. I mean...I can open carry a gun OR a sword. Choose your weapons wisely gents.”

A cooler head chimes in: “Well before you go catching too many charges you might want to reread the title at the end. Says fists only so idt you’ll be using any weapons and getting away with that although it would be a funny court case with the defendant citing this law.”

What’s the Texas law behind mutual combat?

The statute is in the Texas Penal Code section 22.06. It boils down to this: Someone charged with assault can point to the victim’s consent to fight as a defense if:

• The altercation does not cause serious bodily injury or threaten to cause injury, or

• The victim knew of the risks and participated anyway.

Consent does not have to be explicit, Tidwell said. All that is needed is “a reasonable belief” that consent was given in words or deed.

Here is how the mutual combat statute is written

Sec. 22.06. CONSENT AS DEFENSE TO ASSAULTIVE CONDUCT. (a) The victim’s effective consent or the actor’s reasonable belief that the victim consented to the actor’s conduct is a defense to prosecution under Section 22.01 (Assault), 22.02 (Aggravated Assault), or 22.05 (Deadly Conduct) if:

(1) the conduct did not threaten or inflict serious bodily injury; or

(2) the victim knew the conduct was a risk of:

(A) his occupation;

(B) recognized medical treatment; or

(C) a scientific experiment conducted by recognized methods.

(b) The defense to prosecution provided by Subsection (a) is not available to a defendant who commits an offense described by Subsection (a) as a condition of the defendant’s or the victim’s initiation or continued membership in a criminal street gang, as defined by Section 71.01.

What does mutual combat look like in real life?

Tidwell, the Prosper attorney, gives two real-life examples of when this affirmative defense can be applied, and when it cannot.

• You argue with another person in a bar. It gets heated. You stand up. He stands up. You motion for him to step outside to settle the score. He nods in agreement. You both step outside, roll up your sleeves, and proceed to box. No one is seriously hurt. This scenario safely falls inside the mutual combat defense.

• On the other hand, Tidwell writes, the defense cannot be used if you and a friend start a fight club in your backyard and you pummel your friend, breaking bones in his body. Although your friend explicitly agreed to fight you, the altercation caused serious bodily harm. Also, because the club you started is an amateur operation, the “this is an occupation” argument would not be valid. This is what distinguishes professional boxers and mixed martial arts fighters.