"Hope Is The Thing With Feathers"

Not only is @GovRonDeSantis’s masking ban unsafe and unsupported by science, it’s also illegal and unconstitutional.

“A Florida judge ruled Governor Ron DeSantis's executive order banning mask mandates in schools was unconstitutional.” https://t.co/OzqLGZbiAT

— The Lincoln Project (@ProjectLincoln) August 27, 2021

I would not say this is even "on point" with Texas law, for reasons I'll explain (briefly) in a moment; but this is close to the argument I expect will eventually be made in a Texas court:

One of the central arguing points in the state's side of the case was the "Parents' Bill of Rights" that became law this year. Judge John Cooper said the new law does "not ban mask mandates at all." The governor had previously said the new law gave him the authority to issue his executive order.

"Parents' right are very important but they’re not without some reasonable limitations," usually in regard to health care or safety, the judge noted.

Cooper also added that the law doesn't mean the state can penalize school boards. Instead, those schools boards should have the due process to indicate their policy is reasonable, however, the state has not done so with Alachua and Broward school districts.

If Texas has a law like Florida's, I haven't heard of it.  But that doesn't mean it doesn't exist (these things tend to spread like, well, a virus, from state to state) nor that Paxton isn't using it in briefs I haven't read as one leg upon which the Governor's authority stands.  But that "reasonable limitation" language is what I've been arguing for all along.  I don't think the Governor can decide he knows best and just ban masks because he wants to, especially if there is evidence of their efficacy and aid in abating the spread of a deadly communicable disease.

So there's that.  There's also the due process business.  Abbott has threatened to fine school boards and county commissioners (persons, no entities, IOW) who defied his order; but I haven't heard of any enforcement actions on that front.  Still, the due process argument would apply, as the Florida court said it does for penalizing school boards by withholding state funds.

And there's this:

During his ruling, Judge Cooper systematically debunked evidentiary reports and studies used by the governor to prove masks are ineffective or are not recommended by experts, pointing out that several of them actually said the opposite. He also said that some of the studies took place before the delta variant became the dominant strain in Florida.

"We had a different, less infectious virus than we had last year," Cooper said during Friday's virtual hearing. He later said, "What is appropriate for one county, may not be appropriate for another county." 

Lawsuits depend on facts.  "Change the facts, change the outcome" means, in law, you change the result the facts produce.  One set of facts is exoneration, or support for a governor's executive order; but another set, and that order falls.  The court in Florida rejected the evidence presented in favor of the executive order; so the order falls.

It could happen in Texas; we just haven't gotten a case past interlocutory appeals for extraordinary relief yet.  And one other way in could be this reasoning:

DeSantis has dismissed the masking recommendation of the Centers for Disease Control and Prevention as not applicable to Florida, but Cooper cited numerous Florida laws and statutes covering health care in nursing homes, prisons and elsewhere that say state decision-makers should give great weight to CDC guidelines.

Especially since Abbott's orders on vaccines and masks all exclude nursing homes.  Gee, what's the basis for that, Governor?  Old people vote, but kids under 18 don't?

And I think few trial judges in Texas would put the opposite of this sentiment in print:

The judge pointed out that most experts agree masks protect other children, not just those wearing them, and he rejected the claim made by a psychologist at a closed-door DeSantis-led roundtable that "masking is child abuse."

"I’ve seen no scientific evidence of that," Cooper said.

Really, I like this opinion; what I've read of it, anyway:

"We all zealously protect our personal rights," he said. "We can drink until we're intoxicated...but we cannot get in our car and start driving around while we've had alcoholic beverages that impair our ability to drive. We all have the right to drink alcohol, but the driver’s right to drive intoxicated is limited by the government."

"When we talk about absolute and fundamental rights, there’s always a footnote," Cooper added. "Well let's see if exercising this right harms other people." 

By the way, this ruling came after four days of testimony.  No case in Texas has gotten that far yet.  All the rulings of the Texas Supreme Court are preliminary and limited to the case before them; they've made no ruling for the state as a whole.  That's because no case has developed a record which the Court can review.  Not yet, anyway.

Hope is the thing with feathers, and I'm feeling rather feathery myself.