The decentralization of prosecution and trials in Texas has produced uneven justice across the state. Because prosecutions are carried out by local officials, the characteristics of criminal prosecutions across the state vary greatly.
Much depends on the charges that a district attorney brings against a particular defendant. District attorneys are politicians who often campaign on their success in fighting crime. As a result, they generally have an incentive to bring the strongest charges possible against any given defendant. But district attorneys must assess their investigative resources and the financial resources of their district when considering whether to bring a case to trial and under what classification of charges. Criminal court trials are expensive, and those involving more serious charges generally require greater resources and time, and consequently cost more.
The uneven distribution of capital murder cases across the state offers a compelling view of the variability of criminal prosecution in the Lone Star state. As Michael Hall describes it in his Texas Monthly article "Death Isn't Fair":
Only about one in a hundred killings ends up as a death penalty case. Who decides? The local district attorney. What does he base his decision on? There's no simple answer. Prosecutors have enormous discretion and are accountable to no one, except to the voters who elect them. You might think that politics would cause all DAs to be death penalty advocates, but this is not borne out by the facts. 
As Hall notes, a big factor is money. Capital murder cases are enormously expensive for the jurisdiction bringing the charges. It costs between $50,000 and $100,000 to prosecute a capital murder case. Most small municipalities and counties cannot afford the costs of long jury trials, laboratory testing, and the cost of expert witnesses.
Consequently, capital murder charges are likely to be brought in communities with relatively large criminal trial budgets and existing investigative infrastructure. Indeed, according to data provided by the Texas Department of Criminal Justice, fewer than half (46 percent) of the state's 254 counties have brought capital murder charges against a defendant.
Since 1976, slightly more than one in four counties (26 percent) have brought such charges more than once. And, 763 of the 937 individuals sentenced to death from 1976 to early 2003, received their death sentences from one of only twenty-seven counties, or just more than 10 percent of Texas counties. Michael Hall observes that: "Since 1976, only 116 of Texas's 254 counties (fewer than half) have sentenced a person to death; more than half the counties (138) have never sent anyone to death row." These figures differ only slightly from updated figures provided by the Texas Department of Criminal Justice, which in March 2008 reported that 119 counties had sentenced at least one person to death. Hall's overall point - that only a minority of the state's countries account for all the death row convictions - remains correct.
One can also consider Texas's place in carrying out the death penalty in a national context. The Texas Politics feature Executing Justice compares Texas willingness to carry out the death penalty in comparison to the rest of the United States. As the feature illustrates, since 1984 Texas, along with other southern states, has led an increase in executions. Texas and the other southern states have carried out more than 72 percent of all executions. Despite variability in the process inside the state, on a state-by-state basis, Texas has demonstrated a real willingness to issue and carry out the death penalty.
5 link: Michael Hall, "Death Isn't Fair, Texas Monthly, December 2002 (free registration required to view article).