State income tax revenue, which has been earmarked for Utah's public schools for nearly 60 years, can also be used to pay for higher education programs, according to the attorney general's office.

The 11-page opinion released Monday says income tax revenue may be used for both the public education system and higher education system as defined in the Constitution if authorized by the Legislature."Historically, income tax revenue has never been used for higher education. However, the opinion found universities and colleges fall under the constitutional definition of the "public schools system" funded by income taxes.

"It's exactly what we expected," said Gov. Norm Bangerter's chief of staff, Bud Scruggs. "That's one of the reasons we didn't push the A.G.'s office to finish it."

The governor had asked for the opinion months ago, during his fight against the initiative to take the sales tax off food. Voters overwhelmingly defeated the initiative last month.

Bangerter and other critics of the initiative were worried about how the state would make up the projected $90 million annual loss in sales tax revenue.

One option would have been to start using income taxes for more than kindergarten through 12th-grade programs, so any cuts that needed to be made would be spread to public education.

That possibility, opponents believed, would help turn the public against an initiative that more than 100,000 Utahns had petitioned to get on the general election ballot.

But the initiative's popularity began shifting soon after Bangerter came out against taking the sales tax off food. The governor has since promised he would not support taking income tax revenues away from public education.

"The governor said, `Whether or not the Constitution is flexible to allow this, as long as we're last in the nation in funding education, I'm not going to allow funds to be taken away from education,"' Scruggs said.

According to the opinion, the Legislature would need to make only a change in state law in order to be able to spend income taxes on higher education programs. Such a change may be considered by lawmakers next year.

Budget analysts predict that in the near future, income tax revenues alone will be more than enough to pay the state's public education bill. In the past, money has also had to be transferred from the state's general fund.