The opinion
RIVES, Circuit Judge
(specially concurring) :
I concur in the result but not in everything said in the opinion. Insofar as the opinion demonstrates that the classification system established by Article 44.09 does not have a rational relation to a legitimate state purpose and therefore violates equal protection, I heartily agree.
Every statutory classification must meet the rational relationship test. Some classifications, those which are “suspect” and those which deny a “fundamental” right, can be justified only by showing a “compelling” state interest. As to the statutory “first appeal” provided to criminal defendants, 1 it seems to me that a classification which denies any appeal whatsoever to a prisoner who has been recaptured within two days after escaping can be justified only by showing a “compelling” state interest. 2
I therefore specially concur.
. Douglas v. California, 1963, 372 U.S. 353 at 356 and 357, 83 S.Ct. 814 ; cf. Ross v. Moffitt, 1974, - U.S. -, 94 S.Ct. 2437 , 40 L.Ed.2d-.
. See Mr. Justice Marshall’s discussion in dissent in San Antonio School District v. Rodriguez, 1973, 411 U.S. 1 , at 102 and n. 61, 93 S.Ct. 1278 .