concurring.
I concur in the Court’s judgment but write separately to offer some guidelines *768regarding the use of the defense of selective prosecution in regulatory actions.
There are many external factors over which an agency has no control that influence the outcomes of regulatory decisions. Therefore, it is egregiously inequitable to allow a defendant to force the State of Texas to justify a penalty it seeks in a pending action by explaining the penalties imposed in earlier unrelated cases. Allowing a defendant to employ such a defense without first requiring evidence that the prosecution used impermissible criteria (such as race or religion) would be unprecedented and bad policy.1
I am concerned that without this safeguard, future defendants will invoke this defense, regardless of merit, to divert the trier of fact’s attention from the real issue of whether the defendant violated an environmental regulation. The State should not have to validate any result reached in prior cases unless a concrete basis exists for doubting the State’s good faith in bringing the current enforcement action.
The State Water Commission maintains an “enforcement log” with columns that list the companies that were the subject of the enforcement, the nature of the claimed violation, the penalties assessed, and the penalties collected. Many of the entries showed “0.00” as the amount of penalty assessed or collected. The trial court admitted the log into evidence except for a redaction of the columns for penalties assessed or collected. Nothing in the record shows whether the actions listed in the log were pending or adjudicated matters, or whether penalties were assessed by a jury, judge, or settlement.
“Selective prosecution,” a recognized defense to criminal charges, is properly invoked when the prosecution based its action on an impermissible criterion such as race, religion, or the exercise of protected statutory and constitutional rights. See, e.g., Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985); United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982). It requires proof of:
(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and
(2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as “intentional and purposeful discrimination.” * * * Mere “conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.” [Citations omitted.]
Gawlik v. State, 608 S.W.2d 671, 673 (Tex.Crim.App.1980), quoting United States v. Ojala, 544 F.2d 940, 943 (8th Cir.1976); see also Armendariz v. State, 529 S.W.2d 525, 527 (Tex.Crim.App.1975); Railroad Comm’n v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, 1029 (1942) (agency may not discriminate in the enforcement of its regulations).
Without proof of discriminatory intent, the fact that violators have received different penalties is probative of nothing other than the truism that different tribunals (judges or juries) respond differently to similar facts because of factors completely unrelated to the prosecutor’s motives. These factors include: (1) the strength or weakness of the facts of the case; (2) the experience, wisdom, and advocacy skills of the lawyers on both sides of the case; and *769(3) the differences among community values and attitudes. For example, a tribunal may be more strict on a polluter in their back yard while being more tolerant of a polluter in your back yard.
Courts always presume that a prosecution was brought in good faith and in a nondiscriminatory fashion for the purpose of bringing violators to justice. See, e.g., Gawlik, 608 S.W.2d at 673; accord United States v. Falk, 479 F.2d 616, 620 (7th Cir.1973) (en banc). And they recognize that prosecutors have broad discretion in choosing which cases to prosecute. If the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether to prosecute and what charge to file generally rests entirely within his or her discretion. See, e.g., Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978); Callaway v. State, 818 S.W.2d 816, 838 (Tex.App.—Amarillo 1991, pet. ref’d); see also Meshell v. State, 739 S.W.2d 246, 254 (Tex.Crim.App.1987) (part of the exclusive prosecutorial function is exercise of discretion in preparation of cases for trial).
As the Court recognizes, a state agency’s need for discretion in regulatory enforcement is even more compelling than that required in a criminal context. Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985). As Associate Justice Scalia has noted, “[establishing environmental requirements is one thing; enforcing them is something else. Perhaps the greatest degree of agency discretion is involved in deciding whether to assess a penalty against a particular polluter....” Antonin Scalia, Responsibilities of Regulatory Agencies Under Environmental Laws, 24 Houston L.Rev. 97, 105 (1987).
If a defendant has an unfettered right to put into evidence facially differing treatment, then the State would be forced to “re-try” unrelated cases before resolving the instant enforcement action. Moreover, evidence of differing outcomes in unrelated cases, though patently without relevance, could cause incalculable prejudice. The law contemplates as relevant that evidence which is personal to the accused. Comparisons of fines assessed in other cases does not satisfy this standard.
The defendant’s arguments here are analogous to a defendant in a criminal case trying to show the relatively light sentences given other persons charged with the same crime. For example, in a capital murder case, the defendant appealed to the Court of Criminal Appeals and complained that it was error for the trial court to exclude the prior convictions of a co-defendant who had testified against him. The court wrote:
[W]e do not see how the conviction and punishment of a co-defendant could mitigate appellant’s culpability in the crime. Each defendant should be judged by his own conduct and participation and by his own circumstances. If evidence of a co-defendant’s convictions and punishment were admissible, why not the convictions in all other capital murders and the punishment in those cases? ... The law contemplates evidence personal to the accused, not comparisons with the convictions and punishments of other defendants.
Evans v. State, 656 S.W.2d 65, 67 (Tex.Crim.App.1983); see also Johnson v. State, 477 So.2d 196, 218 (Miss.1985). Thus, I concur that the evidence in question, which is not alleged to be tied to any impermissible prosecutorial criteria, such as race or religion, is irrelevant as a matter of law.
I recognize that the role of a jury in state civil enforcement actions is distinguishable from a federal criminal prosecution, and that at some point in a civil action it is desirable to have a jury decide issues of fact concerning the defense.2 I would hold *770that evidence of the enforcement in unrelated cases is inadmissible without first establishing as a predicate a prima facie case of selective enforcement. Upon motion of the State, either by a pretrial evi-dentiary hearing or voir dire outside the presence of the jury, the trial court should make a determination whether the defendant will be able to make a prima facie showing of selective enforcement for discriminatory reasons.
With this opinion, the focus of the selective prosecution defense will continue to be the motive of the prosecutor or agency that brought the action and nothing else. In the present ease, the defendant wanted to show not that the agency failed to enforce the regulations against others, but that other polluters had been assessed insubstantial penalties in previous environmental enforcement actions. The defendant did not offer any evidence that the prosecution brought against him was based on race, religion, or any other impermissible criteria. Thus, I concur with the court’s opinion and judgment.
. It is unfair to require the State to "re-try" the previous cases by having to explain the different facts and circumstances that justify the lesser penalties. For example, in the case now before us, the jury assessed a fine of $5,000 per violation against Malone Service Co., a lesser amount against Arthur Malone, and even a lesser amount against Larry Malone. The judgment rendered in this case was for $2,403,900 against Malone Service Co., $627,000 against Arthur Lee Malone, and a fine of $22,000 against Larry Malone. Presumably, the jury assessed different fines based on their assessment of respective culpability. I believe this evidence should not be admissible in future cases of selective prosecution; for why should the State be required to justify decisions it did not make?
. In federal court, the question of selective enforcement is not even a jury issue, because it does not go to guilt or innocence, but to the right of the court to conduct the trial, a matter outside the province of the jury. See United States v. Berrigan, 482 F.2d 171, 174-76 (3rd Cir.1973). The issue is decided by a pre-trial hearing. Id. at 177. But a pretrial hearing may not be necessary if the defendant's motion fails to allege facts sufficient to raise a reasonable doubt as to the prosecutor’s purpose. Absent such a showing, the prosecution is presumed to have been brought in good faith and without discrimination. United States v. Eklund, 733 *770F.2d 1287, 1290-91 (8th Cir.1984), cert. denied, 471 U.S. 1003, 105 S.Ct. 1864, 85 L.Ed.2d 158 (1985).