Dissenting Opinion by
Justice YÁÑEZ.I disagree with the majority’s holding that article 28.061 is unconstitutional. The objective of article 32.01 is to release the accused from pre-indictment incarceration or discharge bail if an indictment is not timely issued, and this purpose is not adequately achieved without article 28.061. Standing alone, article 32.01 provides for a temporary release from incarceration or bail. Article 28.061, as amended in 1987, bars further prosecution after an article 32.01 dismissal. The fact that the Legislature chose a firm penalty — dismissal with prejudice — to enforce the constitutional requirement that the State timely indict a defendant, does not render article 28.061 unconstitutional.
In examining a statute for constitutionality, we begin with the presumption that the Legislature did not act unreasonably in enacting the statute and it properly considered any constitutional requirements. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978). In other words, we presume the statute is constitutional until the contrary is proven. Id.
While the appellate courts are divided on the question of article 28.061’s constitutionality, I agree with those courts that have found article 28.061, as amended in 1987, an appropriate enforcement mechanism for untimely indictments. This is particularly true because a prosecutor may avoid permanent dismissal under article 28.061 by invoking the “good cause” provision of article 32.01.
As a practical matter, it is not difficult for the State to show good cause. Once an appellant establishes, in either a habeas corpus proceeding or a hearing on an article 32.01 motion, that an indictment was untimely returned, the burden shifts to the State to establish good cause for delay. See Ex parte Torres, 966 S.W.2d 723, 728 (Tex.App.—San Antonio 1998), vacated, 993 S.W.2d 662-63 (Tex.Crim.App.1999).1 A prosecutor may establish good cause by affidavit. Id. Courts have found good cause for a variety of reasons, including shortages in police department personnel and prosecutorial policies delaying indictment until lab reports are analyzed. See id. (citations omitted). Relatively short terms of court are also a factor that courts may consider in determining whether the State has shown good cause for delaying the indictment. Ex parte Martin, 956 S.W.2d 843, 844-45 (Tex.App.—Austin 1997, pet. granted); Ex parte Mallares, 953 S.W.2d 759, 763 (Tex.App.—Austin 1997, no pet.). While article 28.061 may affect the prosecutorial function, I would hold the interference is not unreasonable or burdensome. For these reasons, article 28.061 does not unconstitutionally infringe on or violate the principle of separation of powers.
I further disagree with the majority’s opinion because it circumvents the separation of powers analysis. In reviewing a statute’s constitutionality based on the separation of powers doctrine, a court must answer two questions: (1) whether the statute unduly interferes with the prosecutor’s exclusive prosecutorial function of preparing a case for prosecution, and if so, (2) whether the enactment is authorized by a constitutional provision. Jones v. State, 803 S.W.2d 712, 716 (Tex.Crim.App.1991); Meshell v. State, 739 S.W.2d 246, 255 (Tex.Crim.App.1987).
*165Assuming, for the sake of argument, that article 28.061 unduly interferes with the prosecutorial function, the majority still errs in failing to apply the second step in the separation of powers analysis: determining whether the enactment is authorized by a constitutional provision. I would find article 28.061 authorized by the constitutional provision that empowers the legislature to establish laws regarding the practice and procedures relating to the use of indictments, including their contents, amendments, sufficiency, and requisites. Tex. Const, art. V, § 12; see Ex parte Mallares, 953 S.W.2d at 763.
Moreover, a criminal defendant also has a constitutional right to an indictment in a felony case. Tex. Const, art. I, § 10 (“[N]o person shall be held to answer for a criminal offense, unless on an indictment of a grand jury.”) Article 28.061 assists in enforcement of this right. The constitution does not allow the State to hold a person under arrest or on bah indefinitely, and prosecutors similarly are not allowed to wait an indefinite period before bringing forth an indictment. Without a strong enforcement mechanism to force the State to seek an indictment — such as the threat of dismissal with prejudice — there is little to ensure prosecutors will comply with the law. Viewing article 28.061 in conjunction with article 32.01, I believe that in amending article 28.061, the Legislature struck an appropriate balance between the doctrine of separation of powers and protecting a criminal defendant’s right to indictment.
One of the primary reasons articulated by the Meshell court for holding articles 32A.02 and its enforcement mechanism, the former 28.061,2 unconstitutional, was the provisions gave no consideration to the prosecutor’s reason for delay. See Meshell, 739 S.W.2d at 256. Unlike the provisions before the Meshell court, the provisions before us contain a “good cause” exception, enabling the prosecutor to maintain an untimely indicted case if the delay is justified. Because article 28.061 does not impose an undue interference on the prosecutorial function and is authorized by constitutional provisions, I would hold the statute constitutional.
Finally, I disagree with the majority’s holding that appellant’s untimely indictment complaint is moot. Before the 1987 amendments to article 28.061, criminal defendants who had not been timely indicted were merely entitled to a temporary dismissal. Therefore, it is logical that before the 1987 amendments to article 28.061, the court of criminal appeals required defendants to preserve an untimely indictment complaint by raising it prior to indictment. See Tatum v. State, 505 S.W.2d 548, 550 (Tex.Crim.App.1974).
Because the 1987 amendments to article 28.061 created a bar to further prosecution, however, the return of an indictment no longer moots the defendant’s objection. The appellant in this case, where good cause was never raised, was entitled to a permanent dismissal. The return of an untimely indictment did not moot his complaint. We and other courts have held that, after the 1987 amendment to article 28.061, a complaint of untimely indictment survives the actual return of the indictment and may be raised later as a bar to any further prosecution. State v. Ybarra, 942 S.W.2d 35, 38 (Tex.App.—Corpus Christi 1996), pet. dism’d, improvidently granted, 977 S.W.2d 594, 594 (Tex.Crim.App.1998); Norton v. State, 918 S.W.2d 25, 29 (Tex.App.—Houston [14 th Dist.] 1996), pet. dism’d, improvidently granted, 969 S.W.2d 3, 3 (Tex.Crim.App.1998).
This reasoning is not affected by the recent court of criminal appeals decision in Brooks v. State, 990 S.W.2d 278, 284-85 (Tex.Crim.App.1999), where the court— without explanation — follows Tatum ⅛ holding that article 32.01 has no applica*166tion once an indictment is returned. In following Tatum, decided long before the legislature amended article 28.061 to apply to article 32.01 dismissals, the court of criminal appeals disregards the relevant statutes in effect from 1987 until 1997. The Brooks holding also is inconsistent with Ybarra and Norton, where the court of criminal appeals declined to address this issue and left undisturbed appellate court decisions granting permanent dismissals to similarly situated defendants.
Moreover, it is not clear the State challenged the constitutionality of the statutes in Brooks. Unlike the present case, the prosecutor in Brooks argued the delayed indictment was justified by good cause. Brooks, therefore, should not control our reasoning in the present case. In fact, Brooks appears to be an example of how the good cause safety valve may be exercised by the prosecutor so as not to bar a justifiably delayed indictment.
In this case, the State never attempted to show good cause for its delay in indicting the appellant, but rather, relied exclusively on the unconstitutionality of article 28.061. I would hold appellant properly preserved the untimely indictment issue for our review and is entitled to a dismissal with prejudice.
. The court of criminal appeals remanded Torres to the court of appeals for reconsideration in light of Brooks v. State, 990 S.W.2d 278, 284-85 (Tex.Crim.App.1999),discussed later in this opinion. The appellate court’s decision still properly explains the procedure for establishing good cause and is relied on for this purpose.
. Articles 32A.02 and the former article 28.061 were both part of the Speedy Trial of Criminal Cases Act of 1977, 65 th Leg., R.S., ch. 787, 1977 Tex. Gen. Laws 1970, held unconstitutional in Meshell, 739 S.W.2d at 252-58.